Davis v. Harris Brief for Appellant

    IN THE

United States Court of Appeals
F ob the District of Columbia Circuit

No. 80-2372

Barbara Davis,
Plaintiff-Appellant,

-vs-

P atricia H arris,
Defendant-Appellee.

On Appeal From the United States District Court 
For the District oi Columbia

BRIEF FOR APPELLANT

Of Counsel:
Teen a D. Grodner
420 South Washington Street
Alexandria, Virginia 22314

Gwendolyn Jo M. Carlberg 
Counsel for the Appellant 
420 South Washington Street 
Alexandria, Virginia 22314 
(703) 549-5551

Press op Byron S. Adams P rinting, Inc., Washington, D. C.



CERTIFICATE OF COUNSEL

Barbara Davis v. Patricia Harris Civil Action No.: 80-2372

The undersigned, counsel of record for the appellant, 

Barbara Davis, certifies that the following listed parties 

have an interest in the outcome of this case. These repre­

sentations are made in order that judges of this court may 

evaluate possible disqualification or recusal.

Barbara Davis, appellant
National Association for the Advancement of Colored 

People
Women's Equity Action League

Attorney of Record for 
Appellant, Barbara Davis



TABLE OF CONTENTS

CERTIFICATE OF COUNSEL.............. ............  X

TABLE OF AUTHORITIES . . . . . .  ......................  . . . .  V

STATEMENT OF ISSUES . . . . . . . . . . . . . . .  1

REFERENCES TO PARTIES AND RULINGS . . . . . . . .  2

STATEMENT OF THE CASE . . . . . . . . . . . . . .  4

I. STATEMENT OF PROCEEDINGS . . . . . . . .  4

II. STATEMENT OF FACTS . . . . . . . . . .  6

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . .  13

I. THE TRIAL COURT CLEARLY ERRED IN AGAIN 
ADOPTING THE DEFENDANT'S FINDINGS OF 
FACT AND CONCLUSIONS OF LAW AS THOSE 
OF THE TRIAL COURT ......................  17

A. The Supreme Court, This Court,

PAGE

and a Clear Majority of Circuit Courts 
have Condemned the Practice of a Trial 
Court's Adoption of the Findings and
Conclusions Prepared by One of the
P a r t i e s ......................... .. 17

B. The Court of Appeals Should Con­
duct a Thorough Searching Review of 
the Entire Record in the Case . . . . .  23

II. THE TRIAL COURT CLEARLY ERRED IN
RULING THAT DEFENDANT HAS PROVED THERE
WERE LEGITIMATE, NONDISCRIMINATORY
REASONS FOR PLAINTIFF NOT BEING
PROMOTED . . . . .  ........  . . . . .  25

A. The Defendant Failed to Meet the 
Standards Required for Rebuttal Evidence 
Once a prima facie Case of Sex Discrimi­
nation Has Been Established by Plaintiff 25

B. The Trial Court Put the Burden on 
Plaintiff to Rebut the Trial Court's 
Findings of Fact and Conclusions of Law 
Despite This Court's Determination that 
a prima facie Case of Sex Discrimination
Had Been Shown . . . . . . . . . . . . .  29

-ix-



C. The Defendant Has Failed to Show
That Its Promotion Policies Were Non- 
discriminatory . . . . . . . . . . . .  32
D. Plaintiff's Evidence Established 
Specific Instances of Discrimination 
in Defendant's Failures to Promote
the Plaintiff . . . . . . . . . . . .  34

E. Findings of Fact Numbers 27-30 and
88 Are Clearly Erroneous. Finding of 
Fact Number 30 Represents an Incorrect 
Application of the Burden of Proof . . 37

III. THE TRIAL JUDGE CLEARLY ERRED IN FAILING 
TO RULE THAT ACTS OF HARASSMENT AND 
RETALIATION BY DEFENDANT DATING BACK TO 
PLAINTIFF'S INITIAL EMPLOYMENT WITH NIH 
WERE IN VIOLATION OF TITLE VII . . . .  42

A. Plaintiff Established By a Preponder­
ance of the Evidence that She Was Denied 
Promotion in Retaliation for the Filing
of Her Discrimination Complaint . . . .  42

B. Plaintiff's Other Charges of
Harassment, Reprisal and Discrimination 45

IV. THE TRIAL JUDGE'S FAILURE TO RECUSE HIM­
SELF AND HIS PREDISPOSITION AND 
PREJUDICIAL DEMEANOR SHOULD BE CLOSELY 
SCRUTINIZED BY THE COURT OF APPEALS . . 49

V. THE TRIAL COURT CLEARLY ERRED IN FAILING
TO GRANT PLAINTIFF RELIEF . . . . . . .  52

A. The Trial Court Clearly Erred in Not 
Granting Plaifitiff Back Pay as Required
by Title VII . . . . . . . . . . . . .  54
B. The Trial Court Clearly Erred in
Failing to Promote Plaintiff Retro­
actively . . . . . . . . . . . . . . .  58

C. Plaintiff Is Entitled to Have an 
Award of Attorney's Fees, Expenses and
Costs .......................... .. 59

PAGE

-iii-



PAGE

CONCLUSION . . . . . . . . . . . . . . . . . . . .  70

CERTIFICATE OF SERVICE . . . . . . . . . . . . . .  71

- i v -



TABLE OF AUTHORITIES

CASES PAGE

Albemarle Paper Co. v. Moody, 422 U.S. 405 
--(T975r7~TT^~. . . . . . . ................
Alexander v. Louisiana, 405 U.S. 625 (1972) « .

Bellevue Gardens, Inc. v. Hill, 111 U.S.App.D.C. 
--34TT287 F . 2d 185 (1961) ....................
B. F. Goodrich Company v. Rubber Latex Products, 

IHcT7~T0T1TM~T0T~[6th Cir. 1968) . . . . . .

Brown v. Gaston County Dyeing Machine Co., 457 
'f72d 1377"(4th Cir. 1972) , cert, denied:, 4 09 
U.S. 982 (1972) ..............................

Castaneda v. Partida, 430 U.S. 482 (1977) . . -

Dalehite v. United States, 346 U.S. 15 (1953)

Davis v. Califano, 613 F .2d 957 (D.C. Cir. 1979)

Davis v. Department of Health, Education and 
Welfare, 10 EPD 10,341 (E.D.La. 1975) . . . .

Day v. Matthews, 174 U.S.App.D.C. 231, 530 F.2d 
1083 (1976) ..................................

26,27

21

57

69

28,36,64,
66,68

Edward B. Marks Music Corp. v. Colorado Mag.,
— IHcT, 497 F.~2d 285 (10th Cir. 1974) . . . . .

E.E.O.C. v. Enterprise Association Steamfitters, 
Local No. 638, 542 F.2d 5/9 (2nd Cir. 19761, 
cert, denied, 430 U.S. 911 (1977) . . . . . .

E.E.O.C. v. Kallir, Phillips, Ross, Inc., 401 
F.Supp. 66 (S.D.N.Y. 1975) . . • • - - * *

Foster v. Boorstein, 182 U.S.App.D.C. 342, 561 
F .2d 340 (19771 . ............................

Frances v. American Telegraph & Telephone Co.,
55 FRD 202 (D.D.C. 1972)

Frank v. Bowman Transportation Co., 424 U.S.
747 (19761............ . . . . . .

20

67

42,49

69

42

63



Furnco Construction Corp. v. Waters, 98 S.Ct.
^943 (1978)' . . . . . . . . . . .  3i

* Haekley v. Cleland, 13 EPD 11,585 (D.D.C, 1977) 35,42,
44,45

* Haekley v. Roudebush, 171 U.S.App.D.C. 376, 520
F.2d 108 (1975)     33,35,

41
Hyland v. Kenner Products Co., 11 EPD 10,926

(S.D.Ohio 1976) I I I I 7 . . . . . . . . .  42

In Re Flora Mir Cendy Corporation, 432 F.2d 1060
(2nd Cir. 1970) . . . . . .~7 . . . . . . .  20

In Re Las Colinas, Inc., 426 F.2d 1005 (1st Cir.
1970) . . . . . . . . . . . . . . . . . . . .  20,23

Industrial Building Materials, Inc, y. Inter- 
~ Chemical Corp., 437~F. 2d~1336 (9th Cir. 1970) 20

* James v» Stockham Valves & Fitting Co., 559 F.2d
310 (5th Cir. 1977) . . . . . . . . . . . .  20,24,

67
Johnson v. Goodyear Tire & Rubber Co., 491 F.2d

1364 (5th Cir. 1974) . . . . . . . . . . . .  63

Jordan v. Fusari, 422 F.Supp. 1179 (D.Conn. 1975) 69

Kelley v. Everglades Drainage District, 319 U.S.
415 (1943)     . . . .  22

Laughlin v. United States, 344 F.2d 187 (D.C. Cir.
1965) ........  . . . . . . . . . . . . . . .  52

Louis Dreyfus & Cie v. Panama Canal Company, 298
F. 2d 733 (5th Cir. 1962) . . . . . . . . . .  20,24

* McDonnell Douglas Corp. v, Green, 411 U.S. 792
(1973) . . . . . . . . . . . . . . . . . .  41

Meadows v. Ford Motor Co., 62 FRD 98 (D.Ky.
(1973), modified on other grounds, 510 F.2d 939
(6th Cir7 1975) ’ I I I I I 7 7 7 . . . . . .  70

Mecklenberg v. Montana State Board of Regents,
13 FEP 462 (D.Mon. 1972) ............. . . . 35

PAGE

-VI"



Molinaro v. Watkins-Johnson Cel Division, 359
F.Supp. 474 (D .Md. 1 9 7 3 ) . . . .  ............. 52

Myers v. George, 271 F.2d 168 (8th Cir. 1959) 59,60

Neal v. Delaware, 103 U.S. 370, 26 L.Ed. 567
(T881) .........................................  26

Neloms v. Southwestern Electric Power Co., 440
F. Supp. 1353 ...................... .. 27

Nicodemus v. Chrysler Corp., 596 F.2d 152 (6th
Cir. 1979) ........... . . . . . . . . . .  60

NLRB v. American Compress Warehouse, 374 F .2d
573 (5th Cir. 1 9 6 7 ) ........ .. ~. . . . . . .  67

* Parker v. Matthews, 411 F .Supp. 1059 (D.D.C.
197 6) , aff'd sub nom, Parker v._ Calif ano,
182 U.S.App.D.C. 322, 561 F.2d 320 (1977) . . 69

Patterson v. American Tobacco Co., 535 F,2d 257 
(4th Cir. 1976), cert, denied, 429 U.S. 920 
(1977) . . . . .................. 67,68

Pettway v. American Cast Iron Pipe Co., 411 F .2d
998 (5th Cir. 1969) . .............   . . . . .  42

* Pettway v. American Cast Iron Pipe Co., 494 F .2d
211 (5th Cir. 1974) . . . . . . . . . . . . .  33,67

Richardson v. Jones, 551 F .2d 918 (3rd Cir.
("1977) ........................ .. 68

Roberts v. Bailar, 23 EPD 1[31,090 (E.D.Tenn.
1979) . . . . . . . . . . . . . . . . . . .  55,60

Rogers v. International Paper Company, 510 F .2d
1340 (8th Cir. 1975) . . . . . . . . . . . . .  33

Schilling v. Schwitzer-Cummins Co., 79 U.S.App.
D.C. 20, 142 F . 2d 82 (1944) T T  . . . . . . .  22,24

Sperling v. United States, 515 F.2d 465 (3rd
Cir. 1975) . . . . . .  . . . . . . . . . . .  19

* Stephenson v. Simon, 427 F .Supp. 467 (D.D.C.
— 1976) . . . . . . . . . . . . . . . . . .  55,68
Travelers Insurance Company v. Ryan, 416 F .2d

362 (5th Cir. 1969) T~. . . . . . . . . . . .  60
-vii-

PAGE



PAGE
* United States v. El Paso Gas Co., 376 U.S. 651

09641 . ............... . T “ . . . . . . . . .  19

United States v. Howard, 360 F.2d 373 (3rd Cir.
1 9 6 6 ) .............“ 7 . . . . . . . . . . . . .  20

United States v. Ironworkers Local 86, 443 F .2d
544 (9th Cir. 1971) . . . . . . . . . . . . .  20

United States v. Thompson, 483 F.2d 527 (3rd
Cir. 1973) . . . . .' . . . . . . . . . . . .  52,53,

56
United States v. United States Gypsum Co., 333

U.S. 364 (1947) . . . . . . . . .  . . . .  . . .  40

Whitaker v. McLean, 73 U.S.App.D.C. 259, 118
F . 2d 596 (1941) ...................... .. 61

STATUTES:

Fair Labor Standards Act, P.L. 93-259, 29 USC
§§201-219 (1970 & Supp. V 1975) . . . . . . . .  67

Title VII of the Civil Rights Act of 1964, 42 
USC §§2000e to e-15 (1970), as amended by the 
Equal Employment Opportunity Act of 197 2, 42 
USC §§2000e to e-17 (Supp. V 1975) . . . . .  3

Section 706, 42 USC §2000e-5 (1970 & Supp. V
1975) . . . . . . . . . . . . . . . . . . . .  63

Section 706(g), 42 USC §2000e-5 (g) (1970 & Supp.
V 1975) .................  . . . . . . . . . .  63,65

Section 706 (k), 42 USC §2000e-5 (k) (1970) . . .  69

5 USC §5596 (1970 & Supp. V 1975) . . . . . . .  65

28 USC §1920 (1970) . . . . . . . . . . . . . .  69

28 USC §144 (1976) ..................... .. 49,50,
51,52,
59,62

-viii-



PAGE
RULES AND REGULATIONS:

Civil Service Commission Regulations 5 C.P.R.
§713.261 . . . . . . . . . . . . . . . . . . . .  42

Federal Rules of Civil Procedure, Rule 52(a) . . 17

OTHER AUTHORITIES;

Section by Section Analysis of H.R. 1746,
accompanying Equal Employment Opportunity Act 
of 1972, Conference Report, 118 Cong. Rec.
7166 (1972) . . . . . . . . . . . . . . . . .  64

-ix-



STATEMENT OF ISSUES

I.

II.

III.

IV.

V.

The trial court clearly erred in again adopting the 

defendant's Findings of Fact and Conclusions of Law 

as those of the trial court.

The trial court clearly erred in ruling that defen­

dant has proved there were legitimate, nondiscrimi- 

natory reasons for plaintiff not being promoted.

The trial judge clearly erred in failing to rule 

that acts of harassment and retaliation by defen­

dant dating back to plaintiff's initial employment 

with NIH were in violation of Title VII.

The trial judge's failure to recuse himself and his 

predisposition and prejudicial demeanor should be 

closely scrutinized by the Court of Appeals.

The trial court clearly erred in failing to grant

plaintiff relief.
* * * * * *

This case has previously been before this Court. 

Davis v. Califano, No. 78-1398.
Related cases: Marimont v. Califano, Civil Action

No. 1992-73.
Brown v. Califano, Civil Action 

No. 77-1563

1



REFERENCES TO PARTIES AND RULINGS

Trial Court's Findings of Fact and Conclusions of Law, 

Judge George L. Hart, Jr., Filed March 8, 1978, 
(A.2).

United States Court of Appeals Decision, Judges Wright, 

MacKinnon and Robinson, Decided November 8, 1979, 
(A.640).

Status Hearing, Judge George L. Hart, Jr., March 3, 1980, 
(A.668).

Status Hearing, Judge George L. Hart, Jr., June 4, 1980, 

(A.681).

Order of Judge George L. Hart, Jr., August 6, 1980,

Granting Defendant Enlargement of Time, Denying 

Plaintiff's Motion for Entry of Judgment and 

Denying Plaintiff's Motion for Oral Argument for 
Motion for Entry of Judgment, (A.753).

2



Order Dismissing Plaintiff's Case, Trial Court's Con­

clusions of Law, Judge George L. Hart, Jr., 

Filed September 12, 1980, (A.772).

3



STATEMENT OF THE CASE

I. STATEMENT OF PROCEEDINGS

This appeal involves claims of sex discrimination and 

harassment and reprisals in federal employment and concerns 

the judicial enforcement of the enacted amendments to Title 

VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e to 

e-15 (1970), as amended by the Equal Employment Opportunity 

Act of 1972, 42 U.S.C. §§ 2000© to e-17 (Supp. V 1975), 

[hereinafter cited as Title VII).

Appellant, Dr. Barbara Davis, [hereinafter referred to 

as plaintiff for purposes of continuity and clarity] filed 

an informal EEO complaint in November 1971 and then a second 

one in March 1972, alleging sex discrimination in not being 

promoted and that defendant was continually changing her 

scientific research project, thus denying her job opportun­

ities and advancement.
In March 1974, she filed a third informal complaint 

based on sex discrimination in hiring and promotion, denial 

of training opportunities and denial of professional status. 

On April 9, 1974, plaintiff filed a formal complaint with 

the National Institutes of Health (NIH) Equal Employment 

Opportunity Office based on the same complaints raised in 

her three informal complaints. An EEO investigator was not 

timely appointed. One was not selected until June 17, 1974 

and the investigation did not begin until July 9, 1974.
On February 12, 1975, plaintiff filed her complaint in 

the U. S . District Court for the District of Columbia
4



alleging sex discrimination in her employment at NIH in 

violation of Title VII and violations of her constitutional 

right to due process. Within a couple of weeks of the filing 

of her complaint, she filed a complaint of harassment and 

reprisals. The investigation was conducted by the Equal 

Opportunity Office at NIH between March 14 and March 31,
1975.

On May 12, 1975, a Statement of Findings to Allegations 

of Harassment was issued. One of plaintiff's allegations of 
reprisal was sustained.

A trial de novo was held before U. S. District Court 

for the District of Columbia from November 28, 1977 through 

December 12, 1977.

On March 8, 1978, the trial court, in dismissing plain­

tiff's complaint, adopted verbatim defendant's conclusions 

of law and found that plaintiff did not make out a prirna 

facie case of sex discrimination. (A.2). In the same 

opinion, the trial court prepared only a one-half page sum­

mary of its own. The remainder of the decision was the work 

of the defendant. (A. 62).

Plaintiff timely filed her notice of appeal. She sub­
mitted her appeal brief on August 14, 1978. Oral argument 

was made before this Court on April 26, 1979.

On November 8, 1979, this Court rendered its decision 

finding that the trial court erred in its determination that 

Dr. Davis failed to make out a prirna facie case of discrimi­

nation. This Court reversed the judgment of the trial court



and remanded the case for a determination as to whether the 

defendant has sustained its burden of showing either that 

plaintiff’s statistical proof is inaccurate or insignificant, 

or that she was denied promotion for lawful reasons. The 

trial court was to also consider plaintiff's allegations of 

continuing harassment and retaliation dating back to her 

initial employment with NIH.

The case was remanded to Judge George L, Hart. On 

February 14, 1980, plaintiff filed a Motion for Recusal, a~ 

long with the required Affidavit and a Memorandum of Points 

and Authorities. (A. 659).

On March 3, 1980, plaintiff's Motion was denied by the 

trial court. (A.670-671).

Three status hearings were held by the trial judge, 

March 3, 1980, June 4, 1980 and September 11, 1980,

On September 12, 1980, the trial court in dismissing 

plaintiff's complaint again adopted verbatim the defendant’s 

Findings of Fact which it had previously adopted on March 8, 

1978 and then adopted as its new Conclusions of Law, the 

exact Conclusions of Law which defendant had filed with the 

trial court on March 7, 1980. (A. 772).
On November 6, 1980, plaintiff filed her Notice of 

Appeal with this Court.

11. STATEMENT OF FACTS

Plaintiff, Dr. Barbara Davis, is a female citizen of

the U. S. Dr. Davis at the time of the first appeal was a

GS-9 chemist, series 1320, government employee at the
-  6 -



National Heart, Lung and Blood Institute [hereinafter NHLBI], 

National Institutes of Health [hereinafter NIH], of the United 

States Department of Health, Education and Welfare (herein­

after HEW]. Plaintiff's Findings of Fact, Paragraph 1,

(A. 26) .
Plaintiff was hired at NIH as a GS-5, Chemist on March 

1, 1968. In July 1968, she began work at NHLBI in the Molec­

ular Disease Branch under the supervision of Dr. Howard Sloan. 

(Tr. 247-255, A. 554-562).
Since 1969, plaintiff has repeatedly been overlooked 

for promotion. In 1969, plaintiff was overlooked for promo­

tion from GS-5 to GS-7. Defendant claims this was an admini­

strative oversight.
Sometime in .1971 or in 1972, plaintiff's request for a 

promotion from GS-7 to GS-9 was placed before a NHLBI pro­

motion review board. Admitted in defendant's answer, para­

graph 32, (Tr. 874, A. 620).
On November 29, 1972 Lyman Moore, the Executive Officer 

of NHLBI (then it was NHLI) issued a "Policy on Recommending 

and Approving Promotions for Civil Service Employees".
(A. 299) Defendant failed to follow this policy concerning

Dr. Davis.
By 1974 all of the males hired at the same time or 

immediately after plaintiff had been promoted to GS-9. 

Plaintiff was not promoted to GS-9 until November, 1975, 
despite a desk audit of August 1974 which showed that plain­

tiff had the duties and responsibilities of a GS-9. Plam-
>7



Defendant further prevented plaintiff's promotion 

through directives from the EEO Officer and the U. S. Attor­

ney's office ordering that no administrative action be taken 

on behalf of plaintiff while her suit was pending. (Tr. 

1036-1037, A. 638-639). This is in direct violation of 

Title VII.
Plaintiff's statistics show that plaintiff and women at 

NIH, are not promoted to the high grades like the male em­

ployees and, further that plaintiff and women have not been 

promoted as rapidly.
Pursuant to Interrogatories, defendant was compelled to 

give plaintiff employment data concerning hiring, promotions 

and separations. The graphs and charts in Exhibits 1—16,

(A. 82-154), were compiled by plaintiff from information from 

defendant. A thorough explaination of these statistics can 

be found in Plaintiff's Proposed Findings of Fact and Con­

clusions of Law, which also contain the testimony of plain­

tiff's expert in statistics. Plaintiff's Findings of Fact, 

paragraphs 2-14, (A. 26-34) .
Defendant gave plaintiff the data in coded number com­

puter printout form which had to be uncoded before it waa 

readable, even though it was available in uncoded readable 

form. Plaintiff's Exhibit 125, (A. 482).
Plaintiff was further denied job privileges and oppor­

tunities , as well as promotion, due to the fact that she did 

not have a supervisor. This case is besieged with confusion

tiff's Findings of Fact, paragraph 43, A. 42.

8



as to whom was plaintiff's supervisor and when each supervi­

sor was to have been her supervisor. Plaintiff did not and 

does not know and defendant has failed to introduce as an 

exhibit any official government form showing who was plain­

tiff's supervisor and the dates thereof.

Dr. Webster stated she was unable to recommend plaintiff 

for promotion as she was not officially designated plaintiff's 

supervisor until November, 1975, 11 months after plaintiff 

came to work in her lab. Plaintiff's Exhibit 107, (A. 364).

Plaintiff's Findings of Fact, paragraphs 50, 53 (A. 45, 47).

Plaintiff received a Master's Degree in January, 1973 

and a Ph. D. degree in chemistry in February, 1977 from 

George Washington University. Her job performance appraisals 

have been above average and outstanding. Plaintiff's Find­

ings of Fact, paragraph 56 (A. 43).

From 1971 to present, plaintiff has endured much harass­

ment and many reprisals from defendant. A few are listed as 

follows:
1. Plaintiff's Findings of Fact, paragraph 42, (A. 42)

shows that plaintiff's EEO investigation was thwarted because 

one of plaintiff's supervisors, Dr. Sloan, told Dr. Assmann 

he did not have to give testimony to the EEO investigator.

(Tr. 218-220, A-548-550). This is a direct violation of 

Title VII.
2. Dr. Sloan refused to permit plaintiff to order 

radioactive isotopes in her own name although she was so 

qualified. Others in her lab were permitted to do so by
9



(A.42).

3. Eight days after plaintiff filed her complaint in 

Federal Court, she was ordered by Evelyn Attix to punch a 

time clock. This was an official memorandum and was aimed 

only at plaintiff's branch. Plaintiff's Findings of Fact, 

paragraph 49, (A.44-45).
4. Evelyn Attix the administrative officer for intra­

mural research for NHLBI, in February 1975, threatened to 

remove plaintiff from Dr. Webster's lab because plaintiff 

refused to sign a memorandum of understanding. The Director 

of NHLBI intramural research testified that no one previous­

ly had ever been requested to sign such a memorandum. (Tr. 

145, A.547).
5. The outstanding performance appraisal given to 

plaintiff by Dr. Webster has not been put in her personnel 

file. (Tr. 775, A.617).
6. An affidavit by Richard Striker (a witness for de­

fendant) , concerning plaintiff's complaint is in plaintiff's 

personnel file. (Tr. 774, A.616). This is in violation of 

Civil Service Regulations.
7. Defendant changed plaintiff's scientific research 

projects four times. Plaintiff's Findings of Fact, para­

graphs 27, 30, 32, 36 (A.37, 39,40).
8. Plaintiff was required to sign a training agreement

in July 1975. The Director, Dr. Jack Orloff, testified no
other person previously had been requested to sign such a

-  10 -

Dr. Sloan. Plaintiff's Findings of Fact,, paragraph 41,



policy (Tr. 127, A. 546). This policy would have required 

plaintiff to go on part-time status. (For a full explanation 

of this training agreement and how it was enforced only a- 

gainst women, See Plaintiff's Findings of Fact, Paragraph 51, 

(A. 46).
In addition to the harassment and reprisals, many acts 

of the defendant during plaintiff's employment and the dur­

ation of this case are highly suspect. A few are enumerated 

as follows:
1. The Findings in the Decision of Harassment of NIH 

although dated May 12, 1975, were not revealed to plaintiff 

or the trial court until June 5, 1975, the day before the 

Argument on plaintiff's Preliminary Injunction. The injunc­

tion involved one of the harassment charges (the transfer to 

Dr. Korn's lab). It was recommended in the decision that 

plaintiff not be reassigned to Dr. Korn's lab. Defendant 

kept this from plaintiff and did not act on it until ordered 

to do so by trial judge at the hearing on June 6, 1975.
2. Plaintiff was promoted to GS-9 in November 9, 1975.

This notice was received from defendant simultaneously with 

a court date on summary judgment argument. The trial court 

has the original letter, Plaintiff's Exhibit 56, which if 

viewed from the reverse side will show that the original 
date of the letter was November 23, 1975. (A, 296). This

date was whited out and a "9" replaced "23" to conveniently 

coincide with the court argument.
3. A second trial date of February 14, 1977 was set.

11



Carl Zimmerman, the first male required to sign the training 

policy for graduate students, was not required to sign the 

agreement until January 1977 (two years after plaintiff was 

ordered to sign it) and just one month before trial (Tr.

86-89, A.542-545).
4. Approximately one week before the trial, defendant 

reviewed plaintiff’s job and up-dated her job description. 

Plaintiff had not had an up-dated job description since 1970.

(Tr. 376-377, A. 574-575).
5. Defendant's Exhibit #4 (A. 514) will show that on 

March 18, 1974, the day before Dr. Fredrickson met with Mahlon 

Carrington, plaintiff's third EEC Counsel and Gwendolyn Jo M. 

Carlberg, plaintiff's attorney, Dr. Fredrickson called an

"ad hoc" promotion panel concerning the chemists in NHLBI 

Intramural Research.
In November 1978, Dr. Davis left NIH to work as a 

chemist at the Environmental Protection Agency (EPA). Upon 

leaving NIH she became a GS-11. She is now a GS-12. While 

at NIH for 10-1/2 years, she received only two promotions at 

the lower level grades. Whereas, she has been at EPA for 

only two years and has received two promotions at the higher 

level grades. It is at the higher level grades that NIH has 

failed to promote women. See Exhibits 1-16 (A. 82-154).

On remand, plaintiff moved to have Judge Hart recuse 

himself. He denied plaintiff's motion. He also denied 
plaintiff's motions for a new trial (A.671-672) and for plaintiff 

to be allowed to put on rebuttal evidence (A. 718) The trial
12



court permitted defendant to file late pleadings without even 

giving plaintiff the ten (10) day period required by the rules 

within which to file objections to the late filing. (A. 853).

On September 11, 1980, the trial court had a status hear­

ing. The notice of the status hearing indicated the hearing 

was on a document plaintiff's counsel had never heard of nor 

received. Further the trial court, sua sponte, considered 

"Defendant's Proposed Supplemental Conclusions of Law" at 

the status hearing without prior notice to plaintiff's 

counsel. On September 12, 1980, the trial judge verbatium

adopted the "Conclusions of Law" prepared by the defendant.
(A.772-776).

SUMMARY OF ARGUMENT
In considering this case for the second time, this Court 

should first look to the fact that the trial court almost 

verbatim adopted the defendant's Findings of Fact and Con­

clusions of Law on March 8, 1978. Then, the trial court 

again adopted those same Findings of Fact of defendant as 

the trial court's Findings of Fact on remand,
The defendant in March 1980 filed "Defendant's Proposed 

Supplemental Conclusions of Law". (A.674-680). The trial 
judge verbatium adopted defendant's proposed conclusions of

law as the trial court's Conclusions of Law on remand,
(A.772-776).

This practice has been condemned by this Court and by

a clear majority of the circuit courts. A close scrutinity

by this Court will reveal that the trial judge ignored most
- 13 -



of plaintiff1s evidence, made findings of fact which conflict 

with the trial court’s own findings of fact and with the ex­

hibits of defendant upon which the findings of fact are based 

and made findings of fact which are conclusory in nature.

Despite the fact that this Court found a priiua facie 

case, on remand, the trial judge, without any further evi­

dence, again ruled in favor of defendant. He refused to con­

sider the abundance of facts of plaintiff supported by sta­

tistical evidence, and ignored the fact that all of the 

policies upon which he made his Conclusions of Law were un­

written and were directed at and drafted specifically for 

plaintiff. Plaintiff's situation was "unusual" because the 
defendant chose to treat her differently and discriminate 

against her.

The trial judge failed to require defendant to rebut 

plaintiff's prima facie case by showing that the policies 

and employment practices aimed at plaintiff were of a busi­

ness necessity, were nondiscriminatory, were for lawful 

reasons, were applied to all employees at NIH or that pro­

motions were made according to written standards and objec­

tive criteria.
Plaintiff's evidence established, and this Court pre­

viously found in this case,that there were no set criteria 

for promotions. Defendant's promotions were by ad hoc 

promotion committees, called at the whim of defendant, with­

out formal recorded minutes, with members selected by de­

fendant, and using subjective rules and criteria. The use
-  14 -



of subjective criteria and defendant's failure to promote 

plaintiff constitute sex discrimination. On remand, the 

trial court failed to require defendant to rebut these dis­

criminatory practices and to reveal the minimum, necessary 

objective qualifications for the senior scientific research 

staff position of independent investigator.

In this case, plaintiff established specific instances 

when defendant failed to promote her while promoting similar­

ly situated males. Plaintiff used defendant's own exhibit #4 

and minutes of promotion meetings given to plaintiff by de­

fendant to show that, although her name was on a "promotion 

list", despite her good to excellent performance appraisals 

and her advanced degrees, she was not promoted. Further, 

the trial court has again chosen to ignor plaintiff's evi­

dence which established the fact that defendant (through the 

NIH EEO office) and the U. S . Attorney, through letters and 

directives, ordered that plaintiff not be promoted during 

the pendency of the suit. This is contrary to the law and 

spirit of Title VII and is tantamount to harassment and re­

prisal for filing suit.
The trial court is confused in its Findings of Fact 

and Conclusions of Law with regard to plaintiff's position 

at NIH. She is a Civil Service employee with a permanent 

career ladder, noncompetitive position and a GS rating.

The other types of positions to which defendant and the 
trial court made Findings of Fact and Conclusions of Law are 

staff fellow and post doctorate (post doc) which are not
15



Civil Service permanent positions nor do they have the bene­

fits of a Civil Service position.

The Federal Personnel Manual applies to plaintiff's 

position with regard to career promotions. The trial court 

ignored the Federal Personnel Manual and permitted defendant 

to apply its unwritten policies to plaintiff’s promotions.

The trial court in its Conclusions of Law has, in 

essence, said that a Civil Service employee, like plaintiff, 

with a permanent position, in order to be promoted at NIH 

must give up that permanent position and take a temporary 

staff fellowship/post doc position in order to be promoted. 

This is absurd. The trial court based this conclusion on 

defendant's Findings of Fact and not on any law or regula­

tion. Also, some of the trial court's Findings of Fact con­

flict with each other.

The defendant failed to rebut with any lawful reasons 

the fact that plaintiff was found by defendant in August, 

1974 by a desk audit to be performing duties of a GS-9 and 

that defendant refused to promote plaintiff to GS-9 until 

November, 1975.
In its conclusion #14, the trial court said that plain­

tiff was afforded every opportunity to show that the reasons 

offered by defendant for her nonpromptions were in actuality 

a pretext masking illegal sex discrimination and failed to 

offer any evidence to this effect. However, the plaintiff 

requested numerous times at three status hearings to put on 
new evidence, and to put on rebuttal evidence, but all of .

16



this was always denied by the trial court.

The trial court failed to fully consider and favorably 

rule on the reprisals and harassment which NIH had found de­

fendant to have perpetrated against, plaintiff during the 

pendency of the case and which this Court ordered it to con­

sider dating back to plaintiff's initial employment with NIH.

Finally, the trial judge throughout pretrial, the trial 

and the remand made comments and had an attitude which was 

prejudicial to plaintiff’s case. His comments showed a pre­

deposition on the subject matter and a marked prejudice 

against plaintiff.
For all of the reasons briefly outlined above, and set 

out more fully in the Argument, this Court should find in 

favor of plaintiff.

ARGUMENT

I. THE TRIAL COURT CLEARLY ERRED IN AGAIN ADOPTING 

THE DEFENDANT'S FINDINGS OF FACT AND CONCLUSIONS 

OF LAW AS THOSE OF THE TRIAL COURT.______________

A . The Supreme Court, this Court and a Clear Majority 

of Circuit Courts have Condemned the Practice of a Trial 

Court's Adoption of the Findings and Conclusions Prepared 

by One of the Parties.
Rule 52 (a) of the Federal Rules of Civil Procedure re­

quires that in all actions tried on the facts without a 

jury, the district court "shall find the facts specially and

17



state separately its conclusions of law thereon".

In the instant action, the trial judge adopted verbatim 

the defendant's Findings of Fact and Conclusions of Law in 

March 1978. A close examination of the Findings of Fact re­

veals that the trial judge adopted 100 of his 139 Findings 

of Fact from defendant, verbatim; another 36 of the Findings 

of Fact were adopted from those of defendant with only minor 

changes, either the deletion or addition of a single or 

several words, only three, No. 26, 43 and 126 (A. 6, 9, 19), 

were added by the trial judge and these add little to the 

resolution of the issues before the court. All eight con­

clusions of law were adopted without a single word change 

from those prepared by the defendant. The introduction and 

organization are also the product of the defendant, (A, 2). 

Any changes that he made were minor and inconsequential.

On remand, the trial judge adopted the Findings of Fact 

of March 8, 1978 as his: Findings of Fact and then verbatium 

adopted the Conclusions of Law prepared by the defendant,
(A.772-776).

The conclusions of the defendant are followed so close­

ly by the trial court, that the trial court even adopted the 

mistakes made by defendant in citing the cases.

When defendant prepared and submitted the Conclusions 

of Law in March 1980, the cite for this case in the Federal 

Reporter, Second Series, was not yet available. Therefore, 

the cite was made with blank spaces. However, on September 12, 

1980 when the trial court filed its Conclusions of Law, the
18



cite of 613 F .2d, 957 was available. The trial court so ex­

actly followed what the defendant put in front of it that 

it did not even bother to look up the cite and fill in the 

blanks.

Also, in the citation, Sperling v. United States, the 

defendant made an error in the page citation. The correct 

cite is Sperling v. United States, 515 F.2d. 465 (3rd Cir. 

1975). Again, the trial court said exactly what the defen­

dant said and did not even bother to check the citations 

and cited the mistake in its Conclusions of Law.

The Supreme Court, in United States v. El Paso Gas Co., 

376 U.S. 651 (1964), indicated in strong language its dis­

approval of the procedure whereby a trial judge "mechanical­

ly adopts" the findings of one party as its own. The Court 
quoted, at length, from a statement of Judge J. Skelly 

Wright, given to a Seminar for Newly Appointed United States 

District Judges:

I suggest to you strongly that you avoid 
as far as you possibly can simply signing 
what some lawyer puts under your nose.
These lawyers, and properly so, in their 
zeal and advocacy and their enthusiasm 
are going to state the case for their 
side in these findings as strongly as 
they possibly can. When these findings 
get to the court of appeals, they won't 
be worth the paper they are written on 
as far as assisting the court of appeals 
in determining why the judge decided the 
case. Seminars for Newly Appointed United 
States District Judges (1963), p. 166.

376 U.S. at 656 n. 4.
In El Paso, the trial judge, at the conclusion of the

19



trial and after oral argument, ruled that judgment would be 

in favor of the defendant and had the defendant "prepare 

findings and conclusions and judgment" which the District 

Court adopted verbatim.

The circuit courts of appeal have, with no less vigor, 

condemned a similar result reached after each party has had 

an opportunity to prepare Proposed Findings of Fact and Con­
clusions of Law.—^ The overriding rationale for this posi­

tion is that the practice does not allow the parties or the 
court of appeals to discern the line of decision of the 

trial judge. Such an anomolous result is extremely evident 

in both of the trial court's Findings of Fact in the present 

case.
Faced with numerous issues and many disputed facts, the 

trial judge chose to ignore much evidence and made Findings 

of Fact which are conclusory in nature. Examples of evidence 

that the trial court ignored in both of its Findings of Fact 

include that the plaintiff was passed over for promotion 

from GS-7 to GS-9 at least five or six times; that similarly 

situated male employees werepromoted from GS-7 to GS-9 in

—^In Re Las Colinas, Inc., 426 F.2d 1005 (1st Cir.
1970); Tn~ Re Flora MiF~Candy~Corporation, 432 F.2d 1060 (2nd 
Cir. 1970); United States v. Howard, 360 F.2d 373 (3rd Cir. 
1966); Louis Dreyfus & Cie v. Panama Canal Company, 298 
F.2d 733 (5th Cir. 1962); James V. Stockham Valves & Fitting 
Co., 559 F.2d 310 (5th Cir. 1977); Industrial Building 
Materials , Inc, v. Inter chemical CorpT~7~ 437 F.2d 13?6~~ (9 th 
Cir. 1970); Edward B. Marks Music Corp. v. Colorado Mag., 
Inc. , 4 97 F . 2d 28 5 (f0tTTcIr7“1974)

20



one and one-half years-"administrative oversight" in failing 

to promote plaintiff to GS—7 from a GS—5; that the Admini­

strative Officer of NHLBI, Evelyn Attix, testified that she 

wrote "out-of-our hands" next to plaintiff's name on pending 

requests for promotions because plaintiff had failed to re­

turn to the work of the laboratory after completing her 

master's degree when in fact plaintiff had completed her 

master's degree almost a year and one-half earlier; that 
plaintiff established the existence of an EEO directive and 

U. S. Attorney's Office directive not to promote the plain­

tiff because of her pending administrative complaint and 

later civil suit alleging sex discrimination; that plaintiff 

was, and is, a Ph. D. GS-9 and in October 1975, plaintiff's 

statistics show that of the 80 Ph. D .'s at NIH, only two 

were at a grade level as low as GS—11, with all other 

Ph. D.'s higher than GS-11. Plaintiff was the only Ph. D.

at NHLBI at the GS-9 level.
Although Findings of Fact should be "brief, definite, 

pertinent findings" and there is no necessity for "over­
elaboration of detail or particularization of facts", the 

Supreme Court had held that: "Statements conclusory in

nature are to be eschewed in favor of statements of the 

preliminary and basic facts on which the District Court 

relies. . . . Otherwise their findings are useless for

appellate purpose." Dalehite v. United States, 346 U. S.

21



15? 24 n.8 (1953). (Citation omit t e d ) ^  To support con- 

clusory determinations, "there must be findings, in such 

detail and exactness as the nature of the case permits, of 

subsidiary facts on which the ultimate conclusion , . , can 

rationally be predicated". Kelley y. Everglades Drainage 

District, 319 U.S. 415, 420 (1943). The Court further em­

phasized "there must be findings, stated either in the 

court's opinion or separately, which are sufficient to indi­

cate the factual basis for the ultimate conclusion," Id. 

at 422. This Court stated in Schilling v, Schwitzer-Cummins 

Co., 79 U. S. App. D.C. 20, 142 F.2d 82 (1944), that the 

ultimate test as to the adequacy of findings will always be 

whether they are sufficiently comprehensive and pertinent 

to the issues to provide a basis for decision, and whether 

they are supported by the evidence.

On remand this Court ordered that the trial court must 

determine whether defendant has sustained its burden of 

showing either that plaintiff's statistical proof is in­

accurate or insignificant or that she was denied promotion 

for lawful reasons.
In its Findings of Fact, the trial court not once makes 

a finding nor states that this finding shows that plaintiff

2/
"These findings should represent the judge's own 

determination and not the long, often argumentative state­
ments of successful counsel:'" Notes of Advisory Committee 
on Rule 52(a) Fed. Rules Civ. Proc., 28 U.S.C. (Citation 
omitted).

22



was denied promotion for lawful reasons. There is not one 

lawful reason stated in his findings, nor did the trial court 

ever make a finding that the plaintiff's statistical proof 

was inaccurate or insignificant. Not one time in all the 

139 Findings of Fact and the trial court's Summary does the 

trial court use the word lawful, legitimate, inaccurate or 

insignificant.

R . The Court of Appeals Should Conduct a. Thorough 

Searching Review of the Entire Record in the Case.

As stated by the court In Re Las Gulinas, Inc,, 

note 1 supra, the independence of a court's thought process 

is a case in doubt when the court adopts the Findings of Fact 

and Conclusions of Law prepared by one of the parties as 

its own. Here in this case the trial court has twice 

adopted what the defendant put in front of it to sign. 

Therefore, the trial court's findings and conclusions should 

even be more closely scrutinized. The trial court has not 

once put any independent work in this case. Not once has 

the trial court made a finding on its own.
Appellate Courts are thus required to make the most 

searching examination for errors in such cases and ", , ..

the greater extent to which the court’s eventual decision 
reflects no independent work on its part, the more careful 

we are obliged to be in our review." 426 F.2d at

23



1010.-/
The Fifth Circuit recently had occasion to review a

Title VII case in which the trial judge relied heavily on

the proposed Findings of Fact and Conclusions of Law filed

by the defendant employees in whose favor the trial judge

decided. James v. Stockham Valves & Fitting Co., note 1,

supra. The Fifth Circuit gave searching examination to the

Findings of Fact and found them to be "clearly erroneous"

in many respects. The court? quoting from an earlier Fifth

Circuit decision, Louis Dreyfus & Cie. v. Panama Canal

Company, 298 F.2d 733 (5th Cir. 1962), stated:

" [T]he appellate court can feel slightly 
more confident in concluding that impor­
tant evidence has been overlooked or in­
adequately considered" when factual 
findings were not the product of personal 
analysis and determination by the trial 
judge. 559 F.2d at 314.

Certainly, as will become more apparent in the next 

section of plaintiff's brief, the trial court has both over­

looked and inadequately considered the evidence set forth 

by plaintiff to establish the primary issue in her case, 

that she was discriminatorily denied promotions at NIH and

3/Although plaintiff believes that the trial court's 
Findings of Fact and Conclusions of Law are inadequate for 
a determination of the question of discrimination in regard 
to promotion, plaintiff's core issue under the test enunci­
ated in Schilling, plaintiff does not favor nor request a 
remand to the District Court for insufficient findings.
Instead, plaintiff believes that this Court can dispose of 
the appeal on its merits despite the insufficiency of the 
trial court's Findings of Fact. See e .g ., B. F. Goodrich Company 
v. Rubber Latex Products, Inc., 4 00 F .2d 4 01 (6th Cir. T96§) .

24



KHLBI
In fact, on remand, the trial court ordered plaintiff to 

file objections to its Findings of Fact and Conclusions of 

Law (A.718). The plaintiff complied with the trial court's 

order (A.720). The trial court completely ignored the 

plaintiff's objections, not once did it allude to it, refer 

to it, correct its findings or base any of its decisions on 

what plaintiff had provided it.

II. THE TRIAL COURT CLEARLY ERRED IN RULING THAT 

DEFENDANT HAS PROVED THERE WERE LEGITIMATE, 

NQNDISCRIMINATORY REASONS FOR PLAINTIFF NOT 

BEING PROMOTED.___________________________

A. The Defendant Failed to Meet the Standards Required 

for Rebuttal Evidence Once a prima facie Case of Sex 

Discrimination Has Been Established by Plaintiff.
In remanding this case to the trial court, this Court 

specifically required the trial court to make a determina­

tion as to whether the defendant has sustained its burden 

of showing either that plaintiff's statistical proof is in­

accurate or insignificant, or that she was denied promotion 

for lawful reasons.

4/

4/ Interestingly enough, the trial court's Findings of 
Fact are broken down into alphabetical sections a-i. Not a 
single section heading refers to promotion from GS-7 to GS- 
9 and above. For some inexplicable reason, the trial court 
completely ignored the entire crux of plaintiff’s case.

25



The Supreme Court in Castaneda y. Partlda, 430 U.S. 482 

(1977), held that the state failed to rebut the court's hold­

ing of a prima facie case of discrimination. There the Court 

found that "discriminatory intent can be rebutted only with evi­

dence in the record about the way in which the Commissioners 

operated and their reasons for doing so. It was the state's 

burden to supply such evidence, once respondent established 

his prima facie case." Id. at 500. The Court found that the 

state failed to rebut the presumption by "competent testimony". 

Id. Justice Marshall in his concurring opinion stated, "In 

every other case of which I am aware where the evidence showed 

both statistical disparity and discretionary selection pro­

cedures, this Court has found a prima facie case of discrimi­

nation was established, and has required the state to explain 

how ostensibly neutral selection procedures had produced such 

nonneutral results. This line of cases begins with the de­

cision almost a century ago in Neal y. Delaware, 103 U.S. 370,
26 L.Ed 567 (1881), and extends to our recent decision in 

Alexander v. Louisiana, supra [405 U.S. 625 (1972)]." Id. 

at 502 (footnote omitted). Justice Marshall further stated 

"It seems to me that especially in reviewing claims of in­

tentional discrimination, this Court has a solemn responsi­

bility to avoid basing its decisions on broad generaliza­

tions concerning minority groups. If history has taught us 

anything, it is the danger of relying on such stereotypes.

The question for decision is . . . how the particular grand

2 6



jury Commissioners in Hidalgo County acted. The only reli­

able way to answer that question, as we have said so many 

times,- is for the state to produce testimony concerning the 

manner in which the selection process operated." Id. 

at 504. This is the standard for rebuttal.

In this case, as in Castaneda v. Partida, the evidence 

showed both statistical disparity and discretionary selection 

procedures. In the first appeal, this Court found that de­

fendant’s promotion procedures are highly suspect and must 

be closely scrutinized (A.657) and that "appellant’s statis­

tical prima facie case is bolstered by the subjective and ad 

hoc nature of appellee's promotion decisions".
The defendant has failed to rebut the prior findings of 

this Court. The trial court did not require defendant to 

put on any rebuttal evidence. Therefore, plaintiff's prima 

facie case of discrimination has not been refuted and judg­

ment must be rendered in her favor. There is no evidence 

or "competent testimony" explaining the disparity of hiring, 

promotions and salary between men and women (which includes 

plaintiff) at NHLBI nor is there any evidence showing that 

the discretionary promotion procedures of defendant are 

nondiscriminatory or lawful.
The case of Neloms v. Southwestern Electric Power Co., 

440 F. Supp. 1353 , 1370 in following Albemarle Paper Co. v. 

Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed2d 

280 (1975), says that the order of proof when a particular 

practice is challenged is that;
27



"(1) The employee must show that the employment re­

quirement in question.; selects applicants for hiring or pro­

motion in a racial pattern significantly different from that 
pool of applicants;

(2) The employer then must show that the requirement 

has a manifest relationship to the employment in question; 
and

(3) If the employer does show manifest relationship, 

the employee then may show that other tests or selection 

devices, without the undesirable racial impact, would also 

serve the employer's legitimate interest in efficient and 
trustworthy workmanship."

In this case,steps 2 and 3 have not been followed in 

the order of proof. Thus, you have an unrefuted case of 

sex discrimination. The defendant has failed to prove that 

Dr. Davis would not have gotten the promotion in any event, 

even absent discrimination.

In Day v. Mathews, 530 F. 2d 1083, 1085 (D.CXir. 1976), 

Court said "Moreover, if the Secretary is to prevail, he 

must prove by clear and convincing evidence that Day's 

qualifications were such that he would not in any event have 
been selected."

In this case, the trial court applied the incorrect 

standard and said that it was a preponderance of the evi­

dence. (A. 776).

Dr. Davis' qualifications were such that she was 

recommended for promotion by her supervisor, Dr. Webster

this

28



and given an outstanding performance rating, (A.287), This 

has not been refuted nor has there been any clear and con" 

vincing evidence to show that Dr. Davis would not have been 

promoted,, even absent the sex discrimination perpetrated 

against her by defendant.
B . The Trial Court Put the Burden on Plaintiff to 

Rebut the Trial Court's Findings of Fact and Conclusions of 

Law Despite This Court's Determination that a prima facie 

Case of Sex Discrimination Had Been Shown.
In spite of the fact that this Court found a prima facie 

case of sex discrimination the trial court failed to shift 

the burden to the defendant.
At the first status hearing on March 3, 1980, after 

hearing plaintiff's motion to recuse himself and denying 

said motion, instead of shifting the burden to the defen­

dant, the trial judge asked plaintiff's counsel if she wish­

ed to offer any further evidence in the matter.
Throughout that status hearing the trial judge repeatedly 

propounded questions to plaintiff's counsel. This put plain 

tiff's counsel in the position of trying to speculate 

and surmise what the judge was going to do. Plaintiff s 

counsel was required to tell the trial court what plaintiff 

wanted to do on remand before plaintiff knew what evidence 

defendant, to whom this Court had shifted the burden, was 

going to offer. At that status hearing the trial court did 

not even have the defendant make any statements. (A,668-673).

29



At the status hearing on June 4, 1980, the trial court 

again first addressed plaintiff's counsel. (A.682). Plain­

tiff's counsel requested the trial court to first let her 

know what the defendant intended to do so she would be in a 

position to report to the trial court as to whether or not 

plaintiff intended to put on further testimony in the form 

of rebuttal, (A.682-683).
The trial court ignored this request and denied plain­

tiff's request to put on further testimony.
Further, plaintiff's counsel was repeatedly interrupted 

by the trial judge before she could fully answer his ques­

tions. (A.681-719). She requested him to permit her to 

finish on several occasions, but he continued to interrupt 

her. (A.702).
The trial judge did not once interrupt counsel for de­

fendant.
After it denied plaintiff the right to put on rebuttal 

evidence, the trial court ordered plaintiff to file any ob­

jections to previous findings. (A.718). The objections were

timely filed, but the trial court failed to consider them.
At the status hearing on September 11, 1980, the trial 

court again called upon plaintiff's counsel to state her 

position in the matter. (A.761).
Again, as in the status hearing of June 4, 1980, (A.682)

the notice of the status hearing conflicted with what the 

trial court was requiring plaintiff's counsel to address.

(A.761).
30



At no time on remand did the trial court require defen­

dant to rebut plaintiff's prima facie case. In fact, the 

trial court never intended to have defendant bear any burden 

As it stated at the status hearing of June 4, 1980, " . . .  

and the Court will hold that, in view of the Court of Appeal 

Opinion, you have made out a prima facie case, but in my pre 

vious findings I already found that, in the event you made 

out a prima facie case, it was shown that she was denied 

promotion for lawful reasons. I have already done that, as 

Judge McKinnon so clearly pointed out."

This Court said on remand the trial court must deter­

mine that she was denied promotion for lawful reasons. This 

the trial court did not do because it is saying that in the 

event a prima facie case was shown, I have already shown 

that it was for lawful reasons. Again, nowhere in the find­

ings , past or present, can the words "lawful" or "legitimate 

be found.
In citing Furnco Construction Corp. y. Waters, 98 S.Ct. 

2943, 2950 (1978), this Court held that when the burden of 

persuasion shifts back to the plaintiff, she "must be given 

the opportunity to introduce evidence that the preferred 

justification is merely a pretext for discrimination".
The trial court erroneously denied plaintiff the oppor­

tunity to establish the fabricated nature of defendant's 

"preferred justification".
The plaintiff and this Court are left to speculate and

31



guess as to the specific lawful reasons upon which the trial 

court based its decision. The trial court states it has 

based it upon legitimate reasons but fails to state what the 

reasons are.

C. The Defendant Has Failed to Show That Its Pro­

motion Policies were Nondiscriminatory.

In addition to the statistical disparity, the plain­

tiff's evidence established that there were no criteria far 

promotion other than the subjective determination of almost 

all male supervisors and the subjective determination of 

promotional boards. Supervisors had unfettered discretion as 

to when to recommend an employee for promotion. The pro­

motional boards had no standards by which to determine 

whether a promotion was justified. In fact, the workings 

of the promotion board were a well-kept secret until un­

covered during the course of the instant law suit. Selec­

tion of the promotion panels was unknown, there were no 

formal minutes and even the persons who sat on the panels 

could not testify explicitly how promotions were determined. 

(Tr. 888-893, A. 620-626). Dr. Fredrickson stated, "For this 

ad hoc meeting, I posted no prior criteria or announcements" 

and "No I did not publish any criteria at the meeting."

(Tr. 893, A. 626). This is in direct violation of the 

Federal Personnel Manual requirements for promotions. 

(Plaintiff's Exhibit No. 40, p. 335-14, A. 252).

Numerous courts have recognized the possibility of 

subjective criteria masking bias and discrimination in
32



employment. See, e.g., Pettway y. American Cast Iron Pipe 

Company, 494 F.2d 211 (5th Cir. 1974); Rogers v. Internation­

al Paper Company, 510 F.2d 1340 (8th Cir. 1975); Brown v, 

Gaston County Dyeing Machine Co., 457 F. 2d 1377 (4th Cir.

1972) cert, denied, 409 U.S. 982 (1972). In Rogers, the 

court stated that, "greater possibilities for abuse, however, 

are inherent in subjective definitions of employment selection 

and promotion criteria. . . . Thus, it is especially impor­

tant for courts to be sensitive to possible bias in the hir­

ing and promotion process arising from such subjective defi­

nition of employment criteria." 510 F.2d at 1345.

In Hackley v. Roudebush, this court stated that ". . . 

since there were no written criteria for promotion, a 

racially discriminatory denial of promotion could easily 

pass as one motivated by a desire to accord appellant 

greater training." 520 F .2d at 159.

Although some subjectivity is inevitable in promotion 

decisions at NIH and NHLBI, plaintiff s evidence estab­

lished that there were no criteria whatsoever. Plaintiff s 

evidence showed that promotion boards were put together on 

an ad hoc basis, unbeknownst to the employees considered 
for promotion.

Rather than being "sensitive to possible bias", the

trial court twice adopted verbatim defendant1s proposed

Findings of Fact and Conclusions of Law, choosing to ignore

plaintiff s evidence on the lack of written criteria for

promotion. When coupled with the trial court* s failure to
- 33 -



consider the plaintiff's evidence of being passed over 

several times for promotions and not allowing plaintiff to 

put on any evidence on remand,, the trial court's actions in 

this regard is all the more alarming and is, indeed, clear 
error.

D. Plaintiff 1s Evidence Established Specific 

Instances of Discrimination in Defendant's Failures to 
Promote the Plaintiff.

Plaintiff's evidence did not rely solely on the statis- 

ical data and the use of subjective criteria (if there were 

any criteria). However, as with most of plaintiff's criti­

cal evidence, the trial court's Findings of Fact were silent 

on this point. Of the 12 section headings in the trial 

court's Findings of Fact, not a single one deals with pro­
motion from GS-7 to GS-9.

Plaintiff's evidence established that at the time of 

the filing of her third informal complaint of discrimina­

tion, she had been passed over for promotion at least three 
5 /times.- By February of 1974, plaintiff had been in grade 5

5 /— Defense Exhibit 10, A. 533, a letter written by Dr. 
Fredrickson to plaintiff and her second EEO counselor, 
states that plaintiff was recommended for a promotion by 
him in 1972, and would be again in 1973. Plaintiff's Ex­
hibit 53, page 1, A. 292, shows that a promotion panel was 
convened on February 1, 1974, which again passed over plain­
tiff for promotion. As there are no written criteria for 
promotion nor any written records of promotion panel deci­
sions , plaintiff has no knowledge of why she was passed 
over for promotion on these occasions. Defendant has twice 
failed to offer any plausible explanation for its failure 
to promote the plaintiff. (See Discussion in II D , infra.) 
The fact that plaintiff was passed over for promotion three 
more times in 1974 will be discussed in Section III, infra.

34



QS-7 for three years and eight months.-■ In contrast, sim­

ilarly situated male employees were promoted on the average 

in two years from GS-7 to G S - 9 ^

This court has endorsed an approach utilizing length 

of time-in-grade as establishing prima facie proof of dis­

crimination. Hackley v. Roudebush, 171 U.S. App. D.C. 376,

520 F .2d 108 (1975). On remand, Judge Gesell found repri­

sal where three white investigators with less time-in-grade at 

GS-12 than the plaintiff were promoted to GS-13 at the end 

of a grade freeze and plaintiff was not. Hackley v. Cleland, 

13 EPD 11,585 (D.D.C. 1977). See also Mecklenberg y. Montana 

State Bd. of Regents, 13 FEP 4 62 (D. Mon. 1972) .,

This court in its decision of November 8, 1979 found 

that defendant's promotion procedures were highly suspect

/
— Not including the one year and three months that de­

fendant had failed to promote her to GS-7 from GS-5 due to 
the alleged administrative oversight. Also disregarding 
the fact that an NIH official delegated authority to rate 
chemists by the Civil Service Commission, knew of plain­
tiff's Grade Level Record Exam scores at the time that 
plaintiff applied for a rating, she would have qualified 
to be rated as a GS-7.

7 /— Plaintiff presented the testimony of four male em­
ployees at NHLBI. Three were promoted to GS-9 within two 
years from the date of employment; one in as little as one 
year and seven months and the fourth was promoted within 
three years. At all times, plaintiff's qualifications for 
promotion were, at the very least, equal, if not higher, in 
terms of education, experience and service at NIH. Defen­
dant made no claim to show that these employees were better 
qualified for promotion or, indeed, that plaintiff was not 
qualified for promotion.

35



and must be closely scrutinized (A,657); that no objective 

criteria were established to guide the promotion decisions 

of supervisors, branch chiefs and ad hoc promotion panels, 

who were predominantly male (A.656-657); that the record re­

veals that there are no minimum, necessary objective qualifi­

cations for the senior scientific research staff position of 

independent investigator (A.655); that a doctorate is not a 

minimum necessary requirement (A.655); and that the date on 

the sexual composition of the upper grade and salary positions 

at NIH and NHLBI is probative evidence from which a court may 

infer discriminatory animus. (A.653) .

None of these findings have been rebutted by defendant, 

nor has there been any lawful reasons given by defendant 

that it based its promotion decision on a legitimate consid­

eration.

This court in applying its standards in Day v, Mathews 

supra, must find for Dr. Davis that defendant had the burden 

of proving the existence of each and every policy. Further, 

as this court pointed out in its previous decision (A,643 

n. 14), there was conflicting evidence that the career lad­

der ranged from GS-5 to GS-12 or GS-15. Since this fact was 

peculiarly within the knowledge of defendant, it was defen­

dant's burden to prove it. Defendant failed to do this.

Even if it did go only to GS-12, and plaintiff submits 

that it goes to GS-15, defendant prevented plaintiff from 

being promoted to the highest level in her career ladder

36



due to sex discrimination.

When this evidence is coupled with the prima facie case 

presented by the plaintiff and the fact that promotion de­

cisions rest largely within the discretionary authority of 

predominantly male supervisors, the inference of discrimi­

nation based on sex is overwhelming.

E . Findings of Fact Numbers 27-30 and 88 Are 

Clearly Erroneous. Finding of Fact Number .3 0 Represents 

an Incorrect Application of the Burden of Proof.

Having established a prima facie case of sex discrimi­

nation in defendant's repeated failures to promote the 

plaintiff, defendant offered only one plausible explanation 

for this failure - an alleged policy of not promoting em­

ployees while attending graduate school.

Trial court in its Findings of Fact #27 (A.6), says 

that "it was and is an NIH policy that an employee is not 

given a promotion in grade when he/she is pursuing a gradu­

ate degree, using NIH laboratory facilities, being permit­

ted a flexible work week and having one of NIH's scientists 

to supervise his/her thesis since those employees are pri­

marily working for themselves".
This fact #27 is contradicted by defendant's own Ex­

hibit 10 which is a letter of July 13, 1972 to Dr. Micah 

Kritchevsky from Donald S . Frederickson, Director, Intra­

mural Research NHLBI.
Nowhere in the letter does Dr. Frederickson say that 

while she is working on her thesis would plaintiff not be
37 -



considered for promotion. In fact, in paragraph 3, he stat­

ed "she was rated a priority by the Institute Promotion Com­

mittee that was insufficient for promotion in FY 1972. Her 

name will be resubmitted in FY 1973". (A.533).

Paragraph 2 of the letter says that her thesis problem 

is a finding that she has made of potential importance to 

the work in the Branch. This also contradicts fact #27 

which says that employees pursuing a graduate degree are 

primarily working for themselves.

This is an unwritten policy. It has never been men­

tioned in any documents, letters, or investigations until 

testified to by Evelyn Attix whom NIH had found had com­

mitted a reprisal against Dr. Davis. (A.354). It is 

not corroborated. In fact it is contrary to Dr. Frederick- 

son's letter.

Fact #88 also concerns the policy not to promote gradu­

ate students. (A.14) This fact is also disputed by Dr. 

Fredrickson's letter because she was considered in FY 1972 

for promotion, and was to be considered again in FY 1973.

The reasons given by him for not promoting her were re­

strictions on promotions imposed upon the Institute. In 

writing a letter of 1-1/2 pages dealing with the subject of 

Dr. Davis, her thesis, her lab work, her hours of work and 

her promotions, Dr. Fredrickson not once said anything 

about a policy of not promoting graduate students. It is 

incredible to believe that if, indeed, this was the policy 

that the Director would fail to mention it to Dr. Davis in

38



1972, when discussing her graduate status,

Plaintiff maintains that such a policy did not exist, 

and, if it did, the policy was only a pretext for defendant’s 

failures to promote the plaintiff, The personnel officer 
or supervisory personnel management specialist for NHLB1 

from December 1970 to October 1974, Mr. Pierce, stated in 

his affidavit to the investigator of plaintiff's formal com- 
plaint, Mr. West, on July 24, 1974, and reaffirmed at trial, 

"In regard to the statement allegedly made by Dr. Fredrick­

son that ’generally the policy is not to promote research 

assistants while they are in graduate school’, the Institute 

does not have a policy to this effect." (Tr. 526, A. 601),. 

This was the sole reason given by defendant for not promot­

ing plaintiff. Despite the fact that it was not even known 

to plaintiff and other of plaintiff's witnesses, the trial 

court, contrary to the evidence, ruled that it was and is 

an NIH policy that an employee is not promoted while he/she 

is pursuing a graduate degree. The trial court's Findings 

of Fact in this regard, #27-30, (A.6-7) are clearly erron­

eous.
Plaintiff recognizes that she: has the burden of per­

suading the appellate court that the trial court's findings 

are clearly erroneous, Bellevue Gardens, Inc, y. Hill, 111 

U.S. App. D.C. 343, 287 F.2d 185 (1961), As set out in 

Part I of this brief, plaintiff's burden should be lighten­

ed considerably where, as here, the trial court has twice 

adopted the defendant's Findings of Fact verbatim.
39



The Supreme Court has stated the test where a finding

is clearly erroneous as follows:

A finding is clearly erroneous when although 
there is evidence to suspect it, the review­
ing court on the entire evidence is left with 
the definite and firm conviction that a mis­
take has been comitted.

United States v. U. S . Gypsum Co., 333 U.S. 364, 395 (1947).

A finding of fact may be set aside although supported 

by substantial evidence where it is felt to be clearly 

erroneous. When defendant finally decided to put together a 

written policy for graduate students, Plaintiff's Exhibit 

#95, A. 345, and Plaintiffs Exhibit #96, A. 347, no mention 

was made of a policy that would prevent those employees who 

signed the agreement from being promoted while they attended 

graduate school. It is important to note that the evidence 

supports the fact that this policy came about and was 

drafted solely for the plaintiff. (Tr. 992, 997, A. 632, 

633). For three and one-half years prior to this, plaintiff 

had been required only to sign the standard government form. 

Plaintiff's Exhibit #82, (A.300).

Finding of Fact #30, (A.7) states that no evidence was
presented of NHLBI or NIH ever making an exception to this 

policy for a male e m p l o y e e 7 Plaintiff's unrefuted

8i/This Finding of Fact refers to defense counsel1 s 
cross-examination of the plaintiff, Tr. 421-435, 440-42, A. 
580-597. However, as stated by the trial court at Tr. 425, 
A. 584, although defense counsel could use this line of 
questioning to test the basis of plaintiff's knowledge of 
statements made by her during direct, defense counsel would 
have to establish these facts as part of the defense case.
A. 593-594. Defense counsel failed to do this.

40



testimony is that there were quite a few men who went 

through the Ph. D. program like plaintiff and were promoted. 

Plaintiff specifically named Dr. Walter Lovenberg, Dr. Ken 

McCarthy and Dr. William Wagner. Dr. Wagner supported this 

in his deposition. (Plaintiff's Exhibit #115, A.444).

Plaintiff’s position has always been that the policy 

never existed and was only used as a pretext for defendant's 

failure to promote the plaintiff. It was incumbent upon the 

defendant to produce a witness to whom the policy was applied 

and who was prevented or delayed from receiving a promotion 

while attending graduate school. Having failed to do so, 

Finding of Fact #30, (A.7) must be set aside as a matter of

law.
As stated by this court in Hackley v. Roudebush, 171 

U.S. App. D.C. 376, 520 F.2d 108, 157 (1975), "even a seem­

ingly valid defense may be overcome by a showing that it is 

merely a subterfuge," See also McDonnell Douglas Corp, v « 

Green, 411 U.S. 792 (1973). Plaintiff has shown that the 

alleged policy of not promoting employees while they attend­

ed graduate school was merely a subterfuge for not promoting 

the plaintiff. Defendant in every conceivable way imaginable 

prevented plaintiff's promotion. Having done so, after first 

establishing her prima facie case, plaintiff has proved by a 

preponderance of the evidence that she was discriminated 

against and is entitled to relief from that discrimination.

41



Ill, THE TRIAL JUDGE CLEARLY ERRED IN FAILING TO 
RULE THAT ACTS OF HARASSMENT AND RETALIATION 
BY DEFENDANT DATING BACK TO PLAINTIFF'S 
INITIAL EMPLOYMENT WITH NIH WERE IN VIOLATION 
OF TITLE VII.

A. Plaintiff Established by a Preponderance of 

the Evidence that She Was Denied Promotion in Retaliation 

for the Filing of Her Discrimination Complaint.

Title VII of the 1964 Civil Rights Act protects indi­

viduals who have filed complaints of discrimination from 

reprisals and harassment at the hands of their employers 

in retaliation for the filing of complaints of discrimina­

tion. This provision is incorporated into the Code of 

Federal Regulations, 5 C.F.R. §713.261. Further, it has 

been held that an employee need not even establish the 

validity of his or her discrimination claim in order to 

establish a charge of retaliation.—^

As stated by the Court in E.E.O.C. v. Kallir, Phillips, 
Ross, Inc.:

[T]he act contemplates that employees who 
may feel aggrieved because of alleged 
discriminatory conduct will initiate and 
participate in the process without fear 
of reprisal. Since the enforcement of 
Title VII rights is necessarily depen­
dent on individuals’ complaints, freedom

97
— See e.g. Pettway v. American Cast Iron Pipe Co., 411 

F. 2d 998 (5th Cir. 1969) ; Frances v. American Tel. & Tel. 
Co., 55 FRD 202 (D.D.C. 1972), (j. Waddy); E.E.O.C. v.
Kallir, Phillips, Ross, Inc., 401 F. Supp. 66 (S.D.“ N.Y. 
1975); Hyland v. Kenner Products Co., 11 E.P.D. 10,926 (S.D. 
Ohio 19767; HackTey v. CT~eland7~13 'E.P.D. 11,585 (D.D.C. 
1977), (J. Gesell). In Pettway, the court held that the
retaliation charges should be heard by the district court 
even while the main issues were pending appeal.

42



of action by employees presenting grievances 
to agencies must be protected against the 
threat of retaliating conduct by employers 
who may resent that they are charged with 
discrimination. Rigid enforcement against 
retaliatory action is required to assure 
the effectiveness of the Act.

401 F.Supp. at 72.
Plaintiff established from the testimony of the NHLBI 

personnel officer that a directive had been issued by the 

EEO Office and U. S. Attorney's Office not to promote the 

plaintiff during the pending of her discrimination suit.

( A .638-639).
This EEO directive went into effect when Mr. Striker 

became personnel officer in October of 1974; plaintiff be­

lieves that a clear inference, one which went unrebutted, 

can be made that this directive was in effect in June of 

1974. Evelyn Attix, NHLBI Administrative Officer, testi­

fied that on July 30, 1974, she wrote "out of our hands" 

next to the plaintiff's name on the list of pending requests 

for promotion. She alleged that she had done so because Dr. 

Sloan had come to the promotion panel and told them that 

plaintiff had failed to return to the work of the lab fol­

lowing completion of her master's degree. Yet, plaintiff 

had received her master's degree 1-1/2 years earlier and 

by this time was working in a lab under Dr. Assmann and 

not Dr. Sloan.
Although plaintiff filed her formal complaint of dis­

crimination on April 9, 1974, an EEO investigator was not

43



appointed until June 17, 1974, and the investigation did 
not begin until July 9, 1974, coinciding with the time Ms. 

Attix wrote "out of our hands". The trial court ignored 

this evidence completely, failing not only to make the logi­

cal inferences from it, but to consider it at all.

This is discrimination of the most blatant and onerous 

kind. That such a directive could come from the EEO which 

is responsible for processing, investigating and concili­

ating complaints of discrimination is all the more repre­

hensible .
In Hackley v. Cleland, 13 E.P.D. 11,585 (D.D.C. 1977), 

Judge Gesell found reprisal where three white investigators 

with less time-in-grade at GS-12 than the plaintiff were 

promoted at the end of a grade freeze and the court could, 

find no adequate or plausible explanation for defendant1s 

failure to promote plaintiff at that time. Judge Gesell 

found the inference of reprisal to have greater force where 

there existed no standards or guidelines for promotion 

other than the exercise of discretion and subjective judg­

ments . Judge Gesell stated:
[A] pending controversy created by a 
complaint of discrimination must not 
be allowed to dominate or to control 
subsequent personnel actions affecting 
the employees progress on the job. . . .
If unequal treatment is shown and not 
explained by independent objective facts 
and circumstances, reprisal must be 
found.

Id. at 7127.
The evidence presented to the trial court in the

44



instant case is far more compelling than that presented to 

Judge Gesell in Hackley. As in Hackley, the plaintiff 

established that similarly situated male employees with 

less time-in-grade than plaintiff were promoted to GS-9 at 

this time. Further, a desk audit conducted in August of 

1974 at the request of plaintiff's EEO investigator found 

that plaintiff was performing at the GS-9 level

Finally, the unrebutted evidence is that defendant 

failed to promote plaintiff because it was under a direc­

tive not to do so by its EEO office and the U . S . Attorney's 

Office. This is retaliatory conduct of the most repre­

hensible kind which if left unchecked by this court will 

inhibit the filing of discrimination complaints and under­

mine the effectiveness and purpose of Title VII in rooting 

out the vestiges of discrimination from the federal govern­

ment .

B . Plaintiff1s Other Charges of Harassment,

Reprisal and Discrimination.

Plaintiff's evidence established that her pending com­

plaint of discrimination was allowed "to dominate or to 

control" many other personnel practices of the defendant.

— ^The trial court ignored this evidence as well. 
Bonnie Lau testified that James Pierce, Personnel Officer 
at NHLBI until Mr. Striker took over, in October of 1974, 
had often signed off on promotions when indicated to be 
worthy by a desk audit. He did not do so, however, in the 
instant case. Tr. 502-503, A.598-599. Plaintiff did not 
receive a promotion to GS-9 until one year and three months 
after the desk audit, even though promotions after a desk 
audit normally took up to six weeks.

- 45 -



Evidence inadequately considered by the trial judge 

includes: (1) Dr. Sloan telling Dr. Assmann that he need not

give information to plaintiff's EEO investigator and could 

hide out from him. (2) In February of 1975, a Memorandum 

requiring all employees in the Molecular Disease Branch 

(MDB) going to school during the workday to punch a time 

clock. This came from Evelyn Attix, the Administrative 

Officer of Intramural Research of NHLBI, and involved only 

plaintiff's branch and was directed at only six people 

(later five), one of whom was plaintiff. MDB is only one 

of fifteen branches in Intramural Research. See Plaintiff's 

Proposed Findings of Facts, #49, (A.44). (3) For four months,

from February until May of 1975, the threat by Evelyn Attix 

of plaintiff’s transfer to Dr. Korn's laboratory hung over 

the plaintiff's head. See Plaintiff's Proposed Findings of 

Facts, #47,(A.44) and #51, (A.46-47). This threat was found

to have been tantamount to a reprisal by che NIH itself. 

Plaintiff’s Exhibit #102, (A.349). (4) In July of 1975,

plaintiff was ordered to sign a training agreement. Plain­

tiff's Exhibit #96, (A.347) which no other employee at NHLBI

had ever previously been requested to sign. (5) The trial 

court failed to rule for plaintiff on any of the violations 

of regulations by the three principal discriminating offi­

cials, Donald Fredrickson, Howard Sloan and Evelyn Attix.

Even though Donald Fredrickson indicated plaintiff would 

be promoted, Howard Sloan was permitted to withdraw plain­

tiff's name for consideration. Evelyn Attix testified,
- 46 -



(A.630) , that Ph. D.'s were normally promoted after their 

orals. "This happened to a number of them." It did not 

happen to plaintiff. (6) Evelyn Attix, the Administrative 

Officer, in her testimony admitted losing her temper. (Tr.

911, A.682; Tr. 917, A. 629 and Tr. 950, A.631). In her 

testimony and previously, she had declared that sex dis­

crimination was prevalent and widespread in NIH and in her 

Institute (the same Institute as plaintiff). Yet plaintiff 

was a person to whom she lost her temper. Her testimony 

that sex discrimination existed at NHLBI but could not have 

been suffered by plaintiff is suspect and should have been 

viewed carefully by the trial judge. He failed to do this, 

(7) Plaintiff did not know who her supervisors were and the 

persons who were to be her supervisors were unclear as to 

their responsibility. Having a supervisor is essential to 

being promoted. (Tr. 230, A.551; Tr. 311-312, A.563-564;

Tr. 522, A.600; Tr. 549-551, 568-569, A,602-606). Defendant 

did not introduce any personnel records, government forms 

or any other evidence as to who plaintiff's supervisors 

were and the dates they were designated as such. In her 

deposition, Plaintiff's Exhibit #107, (A.364) Dr. Webster

explains the trouble she had with Evelyn Attix in having 

plaintiff officially assigned to her. Donald Fredrickson 

in his testimony (A.627) stated Dr. Assmann had been 

plaintiff's supervisor since March, 1974. However, Dr. 

Assmann stated in his letter of June 12, 1977, that he had

only been her supervisor for a couple of months prior to
- 47 -



his departure in August, 1974, Plaintiff’s Exhibit #116,

(A.481). (8) Plaintiff and the other chemists in her branch

all of whom were women except for one, were excluded from 

professional meetings by Dr. Fredrickson, (A,. 569-573) . (9)

Plaintiff's qualification were never shown to be below those 

of similarly situated males. In fact, it was shown that 

plaintiff sought further educational qualifications by ob­

taining her master's degree and Ph. D. Plaintiff's Exhibit 

#62B, (A. 297),. The appraisals of plaintiff's job performance

were shown to place her above average and, under Dr, Webster, 

she received a superior performance evaluation. Plaintiff's 

Exhibit #'s 47 and 47A, (A.282). (10) Dr. Fredrickson failed

to ensure that a review was made of plaintiff's responsi­

bilities and work performance pursuant to a Memorandum from 

the NIH executive officer of November 29, 1972. Plaintiff's 

Exhibit #73, (A.299). At this time, plaintiff had not been 

promoted for five and one-half years. (A.576-578),

The trial court's Finding of Fact #80 is clearly 

erroneous. (A.13). Plaintiff was an authorized user of 

radioactive isotopes. Steven Demosky testified and William 

Wagner, by way of deposition, stated that an authorized user 

is entitled to order radioactive isotopes in his or her own 

name. Steven Demosky testified that prior to becoming an 

authorized user of radioactive materials, he had been re­

quired to order radioactive isotopes under Dr. Sloan's name 

but that when he became an authorized user, he was allowed 

to order radioactive isotopes in his own name, as his
48



license permitted. Yet, on August 10, 1974, a request for 

an order of radioactive isotopes by plaintiff was returned 

with the notation "Howard Sloan said not to order under 

Barbara [sic] name." See Plaintiff's Proposed Findings of 

Fact #41, (A.57, A.634-635); Plaintiff's Exhibits #90,

(A.341); #92, (A.344) and #115, (A.444).

This evidence compiled on the record by plaintiff 

shows the extent of the harassment aimed at her which she 

had to endure on the job. As stated by the government in 

E.E.O.C. v. Kallir, Phillips, Ross, Inc., " [R]igid enforce­

ment against retaliatory action is required to assure the 

effectiveness of the Act." 401 F.Supp. at 72. Surely com­

plainants should not have to suffer the kinds of pressure 

and harassment which plaintiff did in this case. If de­

fendants are allowed to harass, individuals will fear to file 

complaints of discrimination and the purposes of Title VII 

will be undermined.

IV. THE TRIAL JUDGE'S FAILURE TO RECUSE HIMSELF 
AND HIS PREDISPOSITION AND PREJUDICIAL 
DEMEANOR SHOULD BE CLOSELY SCRUTINIZED BY 
THE COURT OF APPEALS.________________________

Upon the remand of the case at bar by this Court to 

the trial court, the case was reassigned to Judge George L. 

Hart, Jr. Immediately after receiving notice of the re­

assignment of the case on remand to Judge Hart, the plain­

tiff duly and timely filed an affidavit in support of re­

cusal, pursuant to 28 USC §144 (1976). (A.661-663).

Judge Hart in ruling on the plaintiff's motion for

49



recusal failed and refused to make the required determina­

tions; but, instead the Judge summarily denied the plain­

tiff's motion without any review or consideration of the 

existence of prejudice and bias on his part. (A.670). 

Instead, as to: his. ruling on plaintiff's motion for recusal, 

the Judge merely remarked:

I can't think of anything that would make 
me happier than to recuse myself in this 
case. However, I don't feel, out of con­
sideration for my colleagues, that I can 
hand them a case that we have been drag­
ging on for five years. . . .  I will 
therefore have to deny your motion.
(A.670-671).

The trial judge erred in denying plaintiff's motion 

and in failing to review the motion as statutorily pre­

scribed especially in view of the existence of his bias and 

prejudice against the plaintiff as amply evidenced by state­

ments of the Judge throughout the initial proceedings in 

this cause and as sufficiently set forth in the plaintiff's 

affidavit in support of recusal. The order of the trial 

court denying the plaintiff's motion for recusal should be 

reversed and the case remanded for a hearing before a dif­

ferent trial judge.
In order to preserve the fairness and impartiality of 

trials which is essential to the judicial system, 28 USC 

§144 (1976) mandates the recusal of any judge from a cause 

in which it appears that the judge may be biased or pre­

judiced for or against either party. The provision states:

50



Whenever a party to any proceeding in a 
district court makes and files a timely 
and sufficient affidavit that the judge 
before whom the matter is pending has a 
personal bias or prejudice either against 
him or in favor of any adverse party, 
such judge shall proceed no further there­
in, but another judge shall be assigned to 
hear such proceeding.

The affidavit shall state the facts and 
the reasons for the belief that bias or 
prejudice exists, and shall be filed not 
less than ten days before the beginning 
of the term at which the proceeding is to 
be heard, or good cause shall be shown 
for failure to file it within such time.
A party may file only one such affidavit 
in any case. It shall be accompanied by a 
certificate of counsel of record stating 
that it is made in good faith.

28 USC §144 (1976) (emphasis added). The plaintiff fully

complied with all statutory requirements and, therefore,

the trial judge erred in refusing to grant the plaintiff's

motion and refusing to recuse himself from the cause on

remand.
The aforesaid affidavit and certificate of counsel were 

timely filed. 28 USC §144 (1976). The required affidavit 

and certificate of counsel were filed on or about February 

14, 1980 which was immediately after plaintiff received 

notice that the case had been reassigned to Judge Hart.

The first proceeding on remand to the trial court was a 

status hearing on February 25, 1980. The affidavit of the 

plaintiff was filed more than ten days before that pro­

ceeding in compliance with 28 USC §144 (1976). The plain­

tiff filed the required affidavit at her first opportunity 

which was after the remand of the case to the trial court.
51



The remand of this cause to the trial court and its reassign 

ment to Judge Hart initiated a new proceeding and commenced 

a new time period pursuant to 28 USC §144 (1976) in which 

plaintiff was entitled to and did file an affidavit in sup­

port of recusal. Laughlin v. United States, 344 F.2d 187, 

193 (D.C. Cir. 1965). The factors involved in this case 

allow no other conclusion but that the required affidavit 

and certificate of counsel were timely filed.

In addition to being timely filed, the affidavit and 

certificate of counsel were legally sufficient. The cer­

tificate of counsel was legally sufficient in that it cer­

tified that the affidavit was made by plaintiff under oath 

and in good faith. 28 USC §144 (1976).

The affidavit was legally sufficient in that it 

specifically identified instances in which the trial judge 

exhibited personal bias and prejudice against the plaintiff. 

See United States v. Thompson, 483 F .2d 527, 528 (3rd Cir.------------------------  jpn
1973) ; Molinaro v. Watkins-Johnson Cei Division, 359 F.Supp 

474, 476 (D. Md. 1973). In reviewing an affidavit filed 

in support of recusal the facts set forth therein are to 

be taken as true by the trial court and by the appellate 

court. A determination is then to be made as to whether 

those facts are legally sufficient to show bias or pre­

judice. Thompson, 483 F.2d at 528, Molinaro, 359 F.Supp. 

at 476. In order to be legally sufficient the facts in 

the affidavit must meet a three-fold test:

1. The facts must be material and stated
52



with particularity.

2. The facts must be such that, if true 
they would convince a reasonable man 
that a bias exists.

3. The facts must show the bias is per­
sonal, as opposed to judicial, in nature,

Thompson, 483 F .2d at 528. If the affidavit meets the test, 

it is, therefore, legally sufficient and the trial judge 

must recuse himself. The affidavit in the case at bar 

satisfied each requirement of the test and was legally suf­

ficient. The trial judge, however, refused to recuse him­

self and failed and refused to even consider or determine 

the legal sufficiency of the affidavit.

The plaintiff's affidavit specifically identified 

numerous instances in which the trial judge inappropriately 

displayed his bias and prejudice against plaintiff and her 

particular claims against the defendant. (A.661-663) Each 

instance vividly portrayed the obvious bias of the Judge 

against the plaintiff and against the type of claims the 

plaintiff alleged against the defendant.

From the first time that the plaintiff appeared before 

the court, on June 6, 1975, requesting a preliminary in­

junction, the trial judge displayed a predisposition on the 

subject matter of the case and a marked prejudice against 

the plaintiff. As set forth in plaintiff's affidavit the 

judge stated to counsel for the plaintiff, "I think if your 

client would get more interested in education than ligi- 

gation and get together with them, it would all work ."

53



(A.536).
The affidavit further establishes that on November 11, 

1977, at the pre-trial status call, the trial judge's pre­

judice and bias became even more apparent. During the 

status call, the following interchange between the plain­

tiff’s counsel and the trial judge took place:

MRS. CARLBERG: . . . So to get a complete 
picture, you have to have accessions and 
separations, and your hirings show that 
they are hiring women but that they are 
not promoting them, and that you have a 
large bunch of them leaving. . . .

THE COURT: But why, because they are
having children or what? . « .

THE COURT: If they are leaving because
they are pregnant and/or want to take 
care of their families or what not, it 
doesn't mean anything.

It is shocking in the case of a pro­

fessional woman that a judge would automatically presuppose 

that a woman would leave her position because she was 

pregnant, instead of leaving, as was shown by the evidence 

presented, for better job opportunities. Another example, 

set forth in the affidavit, which took place during the 

status call was when the plaintiff's counsel was speaking 

of remedies and the unacceptable settlement offer made by 

the defendant. The trial judge stated, "This Court isn't 

going to order disciplinary action against anyone."

The judge's remarks were made before any of the evidence of 

defendant's actions had been put on. The remarks were 

absolutely unjustified and clearly show the atmosphere of

54



bias, prejudice and predetermination in which the case was 

heard initially and on remand.

The judge’s prejudice and bias continued throughout 

the trial and remand proceedings. A primary example of the 

judge's attitude and demeanor as detailed in plaintiff's 

affidavit occurred when the plaintiff completed the pre­

sentation of her case and the defendant moved for dismis­

sal. The trial judge showed his predisposition toward the 

defendant and against the plaintiff when he refused to 

direct a verdict and inappropriately gave, as his reason, "I 

think the Court of Appeals takes a dim view of such action 

as directing a verdict at this point, and I never want to 

see this case again once it is finished. Therefore, you 

put your evidence on, and then we will decide it."

(emphasis added.)

A review of the facts set forth in the plaintiff's 

affidavit require the conclusion that a reasonable person 

would be convinced that the trial judge was biased and pre­

judiced against the plaintiff and her case in favor of the 

defendant. From the first time the plaintiff appeared be­

fore him, even before any evidence was presented, the trial 

judge made it apparent that he personally did not believe 

that the plaintiff or her claims of sex discrimination were 

entitled to any credence or attention. "Even where the 

question is close, the judge whose impartiality might rea­

sonably be questioned must recuse himself . . . ."

Roberts v. Bailar, 23 EPD 1(31,090 (E.D. Tenn. 1979). When

55



the trial judge expressed his sentiments about the plaintiff 

and her case, as he did throughout the initial proceedings 

and the remand of this case, the objective appearance of 
impartiality vanished.

The bias of the trial judge was of a personal, not 

judicial, nature, and stemmed from an extra-judicial 

source, not from the case. Support for that conclusion is 

rendered by the judge’s expression of his bias through his 

cryptic remarks on June 6, 1975. Since the judge at that 

time had little, if any, information about the case other 

than the general nature of the claims, the comments could 

not have been premised on the actual merits of the case; 

but, were based on the extra-judicial biases and prejudices 

of the judge. Therefore, the conclusion must be that the 

bias against the plaintiff and her case was personal and 

not of a judicial nature. Essentially all of the judge's 

comments, set forth in plaintiff's affidavit, expose the 

judge's bias against the plaintiff as a member of the class 

of federal employment discrimination claimants. The nature 

of such a class bias is personal and could not be shown to 

stem from the plaintiff's case itself. She, e.g., United 

States v. Thompson, 483 F.2d 527 (1973). That conclusion 

is buttressed by a public statement made by Judge Hart dur­

ing an interview with a Washington Post reporter after which 

it was reported that "he will also continue to try some 

cases, although not discrimination . . . litigation. 'I

56



find they're very unpleasant to try.'" Meyer, Judge Hart 

Semiretires From Court, Washington Post, April 19, 1979, at 

Cl. The facts set forth in the plaintiff's affidavit estab­

lished, therefore, that the bias of the trial judge was of a 

personal nature.

The analysis of the facts in the affidavit mandate 

the conclusion that the affidavit was legally sufficient.

The judge erred therefore by refusing to recuse himself from 
the case.

Due to the failure of the trial judge to recuse him­

self, the proceedings on remand are permeated by prejudice 

and bias. Despite this Court's determination in the first 

appeal of this case that the plaintiff had presented a 

prima facie case of discrimination, Davis v. Califano, 613 

F.2d 957 (D.C. Cir. 1979), the trial judge on remand con­
tinued to place the burden on the plaintiff and refused to 

allow the plaintiff to present further evidence. (A.718). 

The judge perfunctorily proceeded with this case on remand 

giving the plaintiff's claims no credence or attention and 

virtually ignoring the directions of this Court. As he had 

done in the initial proceedings, the trial judge again com­

pletely adopted as his own the Findings of Fact and Con­

clusions of Law filed by the defendant and failed to pro­

vide any reasoning or bias for his decision on remand.

(A.772).
A series of events which occurred during the remand 

procedures vividly exemplies the egregious effect of the

57



judge's bias against the plaintiff and for the defendant.

On June 4 , 1980, the trial judge ruled from the bench that 

the plaintiff would have until July 3, 1980 to file specific 

objections to the findings made by the trial judge at the 

conclusion of the initial trial and that the "government 

will have fifteen days after service upon them to make any 

reply to them that they may wish, and I will then decide 

the case". (A.718) On July 3, 1980, the plaintiff’s objec­

tions were filed and served on the defendant in accordance 

with the ruling of the court. (A.720). The defendant failed 

to make any reply within the prescribed fifteen days to the 

plaintiff's objections. When the time for the defendant to 

file said reply had expired, plaintiff moved the trial 

court for entry of judgment in accordance with its June 4 , 

1980 ruling. (A.739-744). Thereafter, the defendant moved 

the trial court for an enlargement of time in which to file 

a reply to the plaintiff's objections. (A.751). The trial

court granted the motion for enlargement of time without a 

showing of good cause on the part of the defendant as re­

quired by the rules, and without allowing the plaintiff an 

opportunity to oppose the defendant's motion. In conjunction 

with granting the defendant's motion for enlargement of time, 

the trial court, contradicting its own ruling of June 4 , 1980 

summarily denied the plaintiff's motion for entry of judgment 

The flagrant abuse of judicial discretion as evidenced by 

the preceding scenario discloses the egregious effects of

the judge’s bias and prejudice. Treatment of this kind on
- 58 -



remand cannot be explained without the realization that the 

bias and prejudice of the judge against the plaintiff and 

her case dominated the tone and atmosphere of the proceed­

ings .

The timeliness and legal sufficiency of the plaintiff's 

affidavit and certificate of counsel are indisputable. The 

trial judge erred by refusing to recuse himself from this 

cause on remand as required by 28 USC §144 (1976), The 

trial judge further erred by failing and refusing to review 

the plaintiff's affidavit in light of the statutory standards 

of timeliness and legal sufficiency. The perfunctory denial 

of the plaintiff's motion for recusal and the trial judge's 

terse remarks regarding that denial were unsupported by the 

record, unnecessary under the circumstances and further in­

dicative of his bias and prejudice. The failure of the 

trial judge to recuse himself in this cause is reversible 

error.
The impartiality of the trial judge in a case must 

not be compromised. Impartiality is particulary essential 

in causes tried without a jury such as this case at bar.

Much has been written on the crucial role of a trial judge 

and the responsibility of that position. In Myers v. George, 

271 F.2d 168 (8th Cir. 1959), a case which is often cited 

in regard to judicial courtroom conduct, the court empha­
sized that trial court judges should be held to a high 

standard of conduct and that disparaging and prejudicial

59



remarks made by the judge during trial constitute pre­

judicial and reversible error. The court,, in Myers, quoted 

from Bacon’s essay on "Judicature" as setting forth the 

standard of conduct which trial judges should seek to attain.

Judges ought to be more learned than 
witty; more reverend than plausible; 
and more advised than confident. Above 
all things, integrity is their portion 
and proper virtue. ~T 'T ] Pat:Tence ~lm 
gravity of hearing is an essential part 
of justice; and an over speaking judge 
is no well-tuned cymbal. . . .
The place of justice is a hallowed place; 
and therefore not only the Bench, but the 
foot pace and precincts and purprise 
thereof ought to be preserved without 
scandal and corruption.

Id. at 172 (emphasis added). See Travelers Insurance Com­

pany v. Ryan, 416 F.2d 362 (5th Cir. 1969). The essential 

nature of judicial impartiality, especially in employment, 

discrimination cases, has been reemphasized in several 

more recent decisions. See, e .g ., Nicodemus v. Chrysler 

Corp., 596 F.2d 152 (6th Cir. 1979); Roberts v. BaiTar, 23 

EPD 1(31,090 (E.D. Tenn. 1979). In Nicodemus, the Sixth Cir­

cuit found that the remarks of the trial judge, which were 

similar in nature to those of the trial judge in the case 

at bar, were indicative of his bias against the defendant.

Id. at 157. The court, therefore, reversed and remanded the 

case for a hearing before a different judge concluding that 

the "district court's statements suggest that it cannot 

guarantee its impartiality in future proceedings in this 

matter." Id. As emphasized in Nicodemus the right to have 

one's case "tried by a judge who is reasonably free from

60



bias is a part of the fundamental right to a fair trial.

Iff before a case is over, a judge1s bias appears to have 

become overpowering, we think it disqualifies him. It fol­

lows that the judgment must be reversed." Id. at 156 

quoting Whitaker v. McLean, 73 U.S. App. D.C. 259, 118 F.2d 

596 (1941). That principle is controlling in the case at 

bar. The plaintiff had a fundamental right to have her 

case heard and determined by an impartial trial judge.

Since the trial judge was not impartial as continuously 

illustrated by his inappropriate remarks and actions, the 

judgment must be reversed.

In addition to his other remarks, the judge's bias in 

favor of defendant is clearly shown by his permitting the 

defendant to file late pleadings after he clearly stated at 

the status hearing on June 4, 1980, that "the government 

will have fifteen days after service upon them to make any 

reply to them that they may wish and I will then decide the 

case." (A.718).

The defendant was served on July 3, 1981. The defen­

dant did not file an answer or reply. On July 25, 1980, 

seven days after defendant should have filed its reply, 

plaintiff filed a Motion for Entry of Judgment. (A.739). 

The defendant then after receiving plaintiff's Motion for 

Entry of Judgment filed a Motion for Enlargement of Time. 

The trial judge immediately signed an order enlarging the 

time for defendant to respond. The trial judge granted

this on July 31, 1981 without giving plaintiff the ten days
- 61 -



required by the Rules within which to respond. The trial 

judge granted the enlargement of time without basing it on 

any of the reasons set out in the Rules or the case law.

The reason given was "The Government is always short of 

attorneys. The United States Attorney's Office Civil Divi­

sion has more work than it can do"1. (A.767).

The trial judge on remand denied all five motions filed 

by plaintiff and granted all motions filed by defendant.
(A.766).

The refusal of the trial judge to recuse himself in the 

case at bar was reversible error. The affidavit of the 

plaintiff in support of recusal and the certificate of 

counsel were timely filed, legally sufficient, and in full 

compliance with the statutory requirements of 28 USC §144 

(1976). Said statutory provision, therefore, required that 

the judge "proceed no further" in this case. Id. The trial 

court, however, failed and refused to comply with the 

statutory mandate. The trial judge's bias and prejudice 

against the plaintiff and her case were so severe and so 

obvious throughout the proceedings that this Court must find 

that such was so prejudicial to the plaintiff as to be held 
reversible error.

V. THE TRIAL COURT CLEARLY ERRED IN FAILING TO 
GRANT PLAINTIFF RELIEF.______________________

In view of the unrefuted prima facie case of sex discrim­

ination presented by the plaintiff, and defendant's failure 

to rebutt it, the trial court clearly erred in its refusal
62



and failure to grant the plaintiff relief pursuant to the 

remedial provisions of Title VII of the Civil Rights Act of 

1964. The defendant's employment discrimination against the 

plaintiff, in violation of Title VII, entitles the plaintiff 

to appropriate and comprehensive relief for that discrimin­

ation.
Section 706 (g) of Title VII, 42 USC §2000e-5 (g) {1970

& Supp.- V 1975) , provides the primary basis for remedial

authority of the courts in Title VTI actions. Section 706(g)

provides in pertinent part:
[T]he court may enjoin the respondent 
from engaging in such unlawful employ­
ment practice, and order such affirma­
tive action as may be appropriate, which 
may include, but is not limited to rein­
statement or hiring of employees, with 
or without back pay. . . or any other 
equitable relief as the court deems 
appropriate. (emphasis added.)

The broad remedial authority with which Congress inbued the 

courts through §706 (g) is strongly supported and respected 

by the circuit courts of appeal and the Supreme Court. Such 

an attitude was evidenced by the Fifth Circuit when it empha­

sized that "Title VII is strong medicine and we refuse to 

vitiate its potency by glossing it with judicial limitations 

unwarranted by the strong remedial spirit of the act. John­

son v. Goodyear Tire & Rubber Co., 491 F .2d 1364,1377 (5th Cir. 

1974). See Frank v. Bowman Transportation Co.,424 U.S. 747 (1976).

The broad discretion accorded this Court to award reme­

dies for Title VII violations should be exercised in a man­

ner calculated to effectuate the Title VII remedial object-
63



ives. These objectives are to make whole the victim of the 

discrimination and to prevent the perpetuation of discrimi­

nation. These objectives have been emphasized by the Supreme 

Court, the lower courts, and the legislature. See, e.g., 

Albermarle Paper Co. v. Moody, 422 U.S. 405, 417-22 (1975);

Day v. Matthews, 174 U.S.App.D .C . 231, 530 F.2d 1083 (1976).

As the Section by Section Analysis of H.R. 1746 empha­

sized, relief provided by Title VII is intended "to make the 

victims of the unlawful discrimination whole, and . . .rests 

not only upon the elimination of the particular unlawful em­

ployment practice, but also requires that persons aggrieved 

. . . be, so far as possible, restored to a position where 

they would have been were it not for the unlawful discrimi­

nation.'' Section by Section Analysis of H.R. 1746, accompany­

ing the Equal Employment Opportunity Act of 1972, Conference 

Report, 118 Cong. Rec. 7166, 7168 (1972). This Court must 

serve both objectives when fashioning a remedy to redress 

the plaintiff for the defendant's Title VII violations.

Although the elimination of employment discrimination 

is the underlying goal of Title VII, primary emphasis should 

be placed on the objective of making the victim whole there­

by vindicating the rights of this individual plaintiff. This 

Court may effectuate that result by granting the plaintiff 

back pay, retroactive promotion, overtime pay, attorney's 

fees, litigation expenses and court costs, and interest.

A. The Trial Court Clearly Erred in Not Granting Plain­

tiff Back Pay as Required by Title VII.

64



The plaintiff is entitled to back pay as a remedy for 

her past subjection to employment discrimination and repri­

sals while employed at NIH. After a consideration of the 

promotions which the plaintiff would have gained, but for 

the discrimination, it becomes evident that the plaintiff is 

entitled to back pay with interest.

The courts are directed to compute the back pay as if 

the discriminatory action had not occurred and that, during 

the period required to adjudicate and remedy the discrimi­

nation, the employee had worked at the level at which she 

would have been but for the discrimination. The computation 

should include, in addition to straight time pay or salary, 

premium pay, changes in pay rates, changes in the leave 

earnings rate, and any step increases that would have come 

due during the period of discrimination and administrative 

and judicial procedures. 5 USC §5596 (1970 & Supp. V 1975). 

E.g., Stephenson v. Simon, 427 F.Supp. 467, 473 (D.D.C. 1976) 

In that case, a woman who was a GS-11 chemist claimed dis­

criminatory denial of promotion and was awarded retroactive 

promotion to a GS-12 and back pay computed as if she had 
been a GS-12 throughout the period for which the computation 

was made.
The back pay remedy, specifically provided as a Title 

VII violation remedy in §706(g) of Title VII, is an effective 

vehicle to effectuate the Title VII remedial objectives.

The victim of the discrimination is made whole by obtaining 

the earnings that would have been gained if there had been

65



no discrimination. Day y. Matthews, 174 U.S.App. D.C. 231, 

530 F.2d 1083 (1976). The Supreme Court in Albemarle Paper 

Co^— v . Moody, 422 U.S. 405, 418-21 (1975), provided emphatic 

support for the back pay remedy with emphasis on its compen­

satory nature. Thus, the back pay remedy would serve the 

objective of making the plaintiff whole.

As a portion of the back pay award, the Court should 

consider that the plaintiff has been denied compensation for 

overtime work which was ordered by defendant. Plaintiff was 

made to work overtime to finish a project for defendant.

This overtime is documented (Plaintiff's Exhibit No, 104,

A.358) because plaintiff was also required by defendant to 

punch a timeclock during this period of time.

At trial, two other chemists in plaintiff's institute,

J. Roger Lee (Tr. 69-70, A.540-541) and Marguerite J. LaPiana 

(Tr. 234, A.552) testified that they had been paid overtime. 

Dr. Webster stated in her deposition (Plaintiff's Exhibit No. 

107, A.364) that she told plaintiff to keep punching the 

timeclock until plaintiff was ordered not to do so by de­

fendant said that plaintiff was exempted from the Fair Labor 

Standards Act (FLSA) and, therefore, not entitled to overtime. 

If this is true, the defendant did not enforce the FLSA 

uniformly because it denied plaintiff overtime compensation 

while compensating the two other chemists in her same branch, 

one monetarily and one in compensation time. This denial of 

compensation is the direct result of discrimination and re­

prisal against the plaintiff. Therefore, the plaintiff is
-  66 -



entitled to five hundred (500) hours of overtime wages in 

the total amount of $5,761.00. Fair Labor Standards Act,

P.L. 93-259, 29 USC §§201-219 (1970 & Supp. V 1975).

Plaintiff also is entitled to receive interest on back 

pay. The inclusion of interest in the back pay award has 

been widely supported by the courts. Pettway v. American 

Cast iron Pipe Co., 494 F.2d 211 (5th Cir. 1974); NLRB v. 

American Compress Warehouse, 374 F .2d 573 (5th Cir. 1967). 

Interest should be granted from June 17, 1975 to the present 

time.
As a part of her back pay award, the plaintiff is en­

titled to front pay. "In 'front pay1 relief, a monetary 

award is calculated to terminate on the date a victim of 

discrimination attains an opportunity to move to his 'right­

ful place' rather than on the date the order granting relief 

is entered." James v. Stockholm Valves & Fitting Co., 559 

F.2d 310, 358 (5th Cir. 1977). See Patterson v. American 

Tobacco Co., 535 F.2d 257 (4th Cir. 1976), cert.denied, 429 

U.S. 920 (1977); E.E.O.C. v. Enterprise Ass'n, Steamfittets, 

Local No. 638, 542 F.2d 579 (2d Cir. 1976) , cert, denied,

430 U.S. 911 (1977). Several courts have recognized that 

following an order of back pay, promotion and other remedies 

for Title VII violations, there is usually a delay before 

the discriminatory employer institutes the remedial process. 

James v. Stockholm Valves & Fitting Co., supra; E.E.O.C._vL 

Enterprise Ass'n. Steamfitters, Local No. 638, supra . There­

fore , these courts have awarded front pay or directed that

67



front pay be awarded and "to hold otherwise is to encourage 

the [employer] . . .  to delay the remedial process rather 

than to encourage the rapid achievement of the discrimina­

tion victim’s rightful place." Id. at 590-91. The amount of 

front pay is to be determined by a present value estimate of 

earnings lost between the judgment and the promotion of the 

plaintiff to her rightful place. See Patterson v. American 

Tobacco Co., 535 F .2d at 269. As an alternative and in addi­

tion to awarding a fixed amount for front pay, the Court "may 

exercise continuing jurisdiction over the case and make 

periodic back pay awards until the" plaintiff is actually 

promoted to her proper position. Id.

B. The Trial Court Clearly Erred in Failing to Promote 

Plaintiff Retroactively.

The evidence presented by the plaintiff substantiated 

that the defendant's failure to promote the plaintiff was the 

result of discriminatory employment practices and reprisals.

In light of that evidence, the most direct and effective 

remedy for the plaintiff is retroactive promotion.

Retroactive promotion frequently has been granted to 

federal employees as a remedy for Title VII violations. B .g ., 

Richardson v. Jones, 551 F.2d 918 (3rd Cir. 1977); Day v. 
Matthews, 174 U.S.App. D.C. 231, 530 F.2d 1083 (1976); 

Stephenson y. Simon, 427 F.Supp. 467 (D.D.C. 1976). When 

retroactive promotion is granted, the victim receives the 

promotion or promotions she would have gained had she not 

been the victim of employment discrimination.
68



C. Plaintiff Is Entitled to Have an Award of Attorney’s

Fees, Expenses and Costs.

The plaintiff is entitled to attorney's fees incurred 

during the processing of her case. Section 706 (k) of Title 

VII provides that " [i]n any action or proceeding under this 

title, the court, in its discretion, may allow the prevailing 

party, other than the Commission or the United States, a 

reasonable attorney's fee as part of the costs." 42 USC 

§2000e-5(k) (1970). The courts have interpreted the language

"in any action or proceeding" to include both administrative 

and judicial proceedings. See, e.g., Foster v. Boorstein,

182 U.S.App.D.C, 342, 561 F.2d 340 (1977); Parker v. Matthews, 

411 F.Supp. 1059 (D.D.C. 1976) , aff * d sub nom, Parker v. 

Califano, 182 U.S.App.D.C. 322, 561 F.2d 320 (1977); Davis v . 

Department of Health, Education and Welfare, 10 EPD 10, 341 

(E.D.La. 1975). Therefore, the plaintiff is entitled to 

attorney's fees for time spent during the administrative 

process as well as the judicial process. This Court should 

allow the plaintiff to recover any and all normal costs and 

expenses of litigation, including, but not limited to, filing 

fees, clerk and marshal fees and court reporter fees. See 
28 USC §1920 (1970). The plaintiff should also recover the 

expenses incurred for paralegal and law clerk work in her 

case. Jordan v. Fusari, 422 F.Supp. 1179 (D.Conn. 1975).

The plaintiff was forced to incur extensive expenses for 

duplication of exhibits, pleadings, and other materials.

Those copying expenses should be included in an award of
69



costs and expenses. See Meadows v. Ford Motor Co., 62 

F.R.D. 98, 103 (D.Ky. 1973), modified on other grounds, 510 

F .2d 939 (6th Cir. 1975). As established above, the plain­

tiff is entitled to recover any and all costs and expenses, 

incurred throughout the administrative and judicial pro­

cessing of her Title VII action, not limited to those 

specifically set forth in the preceding discussion.

For the reasons set forth above, the plaintiff, Dr. 

Barbara Davis, urges this Honorable Court to reverse the 

decision of the trial court and enter judgment for plain­

tiff finding that defendant discriminated against plaintiff 

in violation of Title VII and that defendant committed acts 

of harassment and reprisals against plaintiff. Plaintiff, 

further, requests that she be granted any and all relief in 

accordance with the remedial provisions of Title VII.

Oral argument is requested.

CONCLUSION

420 South Washington Street 
Alexandria, Virginia 22314 
703/549-5551
D. C. Bar No. 140160, Active

Of Counsel:
TEENA D. GRODNER
420 South Washington Street
Alexandria, Virginia 22314

70